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I AM L.I.P

I am a Litigant In Person

Children And Post-Separation Legislation

 

CHILDREN AND POST-SEPARATION LEGISLATION

Below are listed some acts and orders which may be helpful in your case –

ACTS

Children Act 1989 – Section 8 – This sets out the orders that the court is able to make in private disputes over children.

  • Child Arrangements Order – This is an order which regulates arrangements that relate to the following – (a) who the child is to spend time with, live with, and/or have contact with. (b) When the child is to spend time with, live with, and/or have contact with a certain person.
  • Prohibited Steps Order – This is an order that prohibits a person from acting on parts of their parental responsibility to their child/children.
  • Specific Issue Order – This is an order that is used to settle disputes over specific issues.

Children Act – Section 1

  • This sets out 3 specific factors to take into consideration when the court orders anything in relation to the child –
    • The child’s welfare must be the court’s paramount consideration (the welfare principle).
    • That any delay in making decisions over the child is likely to interfere in the child’s welfare.
    • The court should not make an order unless the order is considered to be best for the child involved.

Children Act 1989 – Section 20

  • This allows local authorities to provide accommodation to children without the presence of a court order when the children do not have suitable living arrangements. This ‘voluntary accommodation’ requires the parents’ agreement for the children to be given this accommodation.

Children Act 1989 – Section 31

  • This allows the court to ensure the child’s welfare by placing them in the care of a specific local authority. Whilst under their care, both the parents and the designated local authority share parental responsibility. This decision can be made by the court if the child is suspected to be suffering or at risk of harm. It is only enforceable to children under the age of 17.

Leaving Care Services – under the Children Act 1989

  • A child who has been in care for at least 13 weeks whilst over the age of 14 and in care for a minimum of one day after the age of 16 is entitled receive leaving care support until they reach the age of 21 despite no longer being in care once they reach the age of 18. If the child plans to pursue further education, they possess the right to ask for assistance in the form of a personal adviser from local authorities until they reach the age of 25.

Police Powers of Protection – under Children Act 1989 – Section 46

  • This provides police officers the legal right to remove and protect a child from a situation where the police officer believes that there is significant risk of harm to the child. This police protection can only last for up to 72 hours.

Emergency Protection Order (EPO)

  • This order allows the removal of a child from the home if the child is in immediate danger. Parental responsibility of the child is then given to a local authority. This order lasts for 8 days, however, this can be extended for up to 7 days if an application is made with strong reasons for it.
 
CASES
 
Below are listed some cases which may be helpful. A basic summary or a relevant quote has been included with the case titles. Feel free to read more into the cases and get more details into the ones that may help you – 
 
Below are listed some cases which concern the idea of shared residence and the reasons for it occurring. A shared residence is when the child of divorced or separated parents lives with each of their parents at allocated time e.g. living for one week with one parent, and living the next week with the other parent.
 
  • The order made must reflect the reality of children’s lives –  Having a shared residence is no longer limited to exceptional circumstances: e.g. D v D [2001] 1 FLR 495
    • The mother had used the sole residence order “as a weapon in the war with her ex-husband”. The husband applied for a shared residence as he believed he was being treated as a secondary parent by the children’s schools and authorities – A shared residence order was granted and upheld in order to “reflect the reality of the children’s lives” (stated by Hale LJ). The court remained focused on the children’s best interests and the welfare principle, which places an emphasis on the child’s welfare as the most important factor.
    • Hale LJ stated that “the children are, in effect, living with both of their parents. They have homes with each of them…” (at [33]). 
  • The shared residence order made psychologically benefits the parents: e.g. Re W [2009] EWCA Civ 370 and Re A [2008] EWCA Civ 867.
    • In the case Re W [2009], Wilson LJ quoted Sir Mark Potter from the case Re A [2008] when speaking on the psychological benefit of shared residence: Decisions may be made agreeing to a shared residence in order to reflect the child’s factual reality or due to a shared residence being “psychologically beneficial to the parents in emphasising the equality of their position and responsibilities” (Re A [2008] EWCA Civ 867, Sir Mark Potter at [66]).
    • It was determined that this psychological benefit to parents would indirectly benefit the child. The order for shared residence was upheld.
  • Re-emphasis on child welfare – A shared residence would be beneficial to the child’s welfare: e.g. Re AR [2010] EWHC 1346.
    • An application was made by the mother to allow herself and her 5 years old child to move to France permanently. The father made an application for the residence of the child which was later altered to become an application for shared residence. The mother’s application was refused due to the child’s welfare being at risk from the move to France. The child’s relationship to their father would suffer. A shared residence order was made. It was stated by Mostyn J that shared residence orders were “nowadays the rule rather than the exception.”
  • Cases in response to certain presumptions (listed below) –
    • In favour of mothers?
      • Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233. It was stated by Judge Munby LJ that “…men and women, husbands and wives, fathers and mothers have come before the family courts, as they come today, on an exactly equal footing. The voice of the father carries no more weight because he is the father, nor does the mother’s because she is the mother. The weight to be attached to their views, if opposed, is to be determined on the basis of the merits or otherwise of the views being expressed, not on the basis of the gender of the person propounding them….” (at [24]).
    • In favour of the ‘natural’ parent/s?
      • Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43. It was stated by Baroness Hale that “the fact that CG is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future…” (per Baroness Hale, at [44]).
      • Re B (A Child) [2009] UKSC 5. It was stated by Lord Kerr that “in the ordinary way one can expect that children will do best with their biological parents. But many disputes about residence and contact do not follow the ordinary way.” (per Lord Kerr, at [35]).
      • He went on the further state that “all consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.” (per Lord Kerr, at [37]).
    • In favour of shared living arrangements?
      • This idea was opposed by the Family Justice Review (2011):
      • It was stated that this “might risk creating an impression of a parental ‘right’ to any particular amount of time with a child” (para.4.27).
      • Instead “the focus should instead be on supporting and fostering a greater awareness of shared parental responsibility and on the duties and roles of both parents from birth onwards” (para.4.28). 
    • In favour of parental involvement?
      • Section 1(2A-B) Children Act 1989 –
        • (2A) ‘A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.’
        • (2B) ‘In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.’
    • In favour of contact?
      • Re C [2011] EWCA Civ 521. In this case, contact with the mother was suspended for a period of 18 months whilst the mother attended the required therapy. It was stated by Munby LJ that parental contact is “a fundamental element of family life and is almost always in the interests of the child.”
      • “Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative.”
      • The judge themself has a “duty to attempt to maintain or restore contact’ and that ‘the welfare of the child is paramount”.
  • Contact Arrangements
    • Possible reasons against contact –

      • Reasons that might cause contact to be reconsidered: an “uncomprehensive catalogue” (per Thorpe LJ, Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260): It was stated by Thorpe LJ that “abuse must form the largest compartment: as well as physical abuse of the other parent and/or a child there is equally sexual and emotional abuse within the family. Then there is the self-abuse of either drugs or alcohol and the failure to maintain sexual boundaries appropriate to the development of the child. Additionally mental illness or personality disorder may be a dominant factor as may be malign motives prompting the applicant to pursue a seemingly justifiable application for the covert purpose of threatening or dominating the primary carer.”

      • Reasons relating to the primary carer having a strong objection to the other parent having contact (with a reasonable argument)
        • Re H [2001] 3 FCR –

          In this case, the father had Huntington’s disease. It is a condition that affected his personality and temperament. He had reportedly threatened to end his life and that of his children’s. In response, the mother withdrew her consent to the children’s direct contact with their father.  The father attempted to gain contact with the children once again by making an application, however, this was refused as this was putting the children at risk of harm. This would also most likely have an effect on the mother’s capacity to raise her children as she was suffering from PTSD following her children’s lives being threatened.

      • The above reason, however, does not count when trying to prevent contact due to hostility
        • Re A [2013] EWCA Civ 1104 –

          • It was stated by McFarlane LJ that “sight must not be lost of the place where the ultimate responsibility for this situation plainly rests, which is with the parents and, in this case, with M’s mother in particular. It is she who has, on the judge’s clear and unchallenged findings, doggedly refused to allow M to develop and maintain a relationship with her father without any good reason whatsoever for so doing; it is she, should she wish to do so, who could now unlock this intractable situation and permit her daughter to have some form of normality and balance in her relationship with her parents as she goes through her teenage years and beyond.” (at [78]).

      • Reasons relating to domestic violence
        • Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260) –

          • In this case, the father to applied for direct contact with his child. He also applied to have parental responsibility over the child. This application was refused by the judge as the mother was afraid of the father due to previous domestic violence towards her. The father appealed this decision, however, this was dismissed as, according to the Children Act 1989, the child’s welfare should be the court’s paramount consideration.