Child Welfare

s.34 Parental contact with children in care

(1)Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) [F1and their duty under section 22(3)(a)] [F2or, where the local authority is in Wales, under section 78(1)(a) of the Social Services and Well-being (Wales) Act 2014] allow the child reasonable contact with— (a)his parents; (b)any guardian [F3or special guardian] of his; [F4(ba)any person who by virtue of section 4A has parental responsibility for him;] (c)where there was a [F5child arrangements] order in force with respect to the child immediately before the care order was made, [F6any person named in the child arrangements order as a person with whom the child was to live ]; and (d)where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, that person. (2)On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person. (3)On an application made by— (a)any person mentioned in paragraphs (a) to (d) of subsection (1); or (b)any person who has obtained the leave of the court to make the application, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person. (4)On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order. (5)When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made. (6)An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if— (a)they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare; and (b)the refusal— (i)is decided upon as a matter of urgency; and (ii)does not last for more than seven days. [F7(6A)Where (by virtue of an order under this section, or because subsection (6) applies) a local authority in England are authorised to refuse to allow contact between the child and a person mentioned in any of paragraphs (a) to (c) of paragraph 15(1) of Schedule 2, paragraph 15(1) of that Schedule does not require the authority to endeavour to promote contact between the child and that person.] [F8(6B)Where (by virtue of an order under this section, or because subsection (6) applies) a local authority in Wales is authorised to refuse contact between the child and a person mentioned in any of paragraphs (a) to (c) of section 95(1) of the Social Services and Well-being (Wales) Act 2014, section 95(1) of that Act does not require the authority to promote contact between the child and that person.] (7)An order under this section may impose such conditions as the court considers appropriate. (8)The Secretary of State may by regulations make provision as to— [F9(za)what a local authority in England must have regard to in considering whether contact between a child and a person mentioned in any of paragraphs (a) to (d) of subsection (1) is consistent with safeguarding and promoting the child's welfare;] (a)the steps to be taken by a local authority who have exercised their powers under subsection (6); (b)the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made; (c)notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies. (9)The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order. (10)An order under this section may be made either at the same time as the care order itself or later. (11)Before [F10making, varying or discharging an order under this section or] making a care order with respect to any child the court shall— (a)consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and (b)invite the parties to the proceedings to comment on those arrangements.

Specific issue order (SIO

An order giving directions for the purpose of determining a specific question that has arisen -(e.g. which school child should attend; whether child should be vaccinated/have a particular treatment)...

Adoption and Children Act 2002 ss46, 47 & 48 - Adoption Orders

Adoption orders (1)An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter. (2)The making of an adoption order operates to extinguish— (a)the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order, (b)any order under the 1989 Act or the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), (c)any order under the Children (Scotland) Act 1995 (c. 36) other than an excepted order, and (d)any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the adoption order. "Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 or an exclusion order within the meaning of section 76(1) of that Act. (3)An adoption order— (a)does not affect parental responsibility so far as it relates to any period before the making of the order, and (b)in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d). (4)Subsection (2)(d) does not apply to a duty arising by virtue of an agreement— (a)which constitutes a trust, or (b)which expressly provides that the duty is not to be extinguished by the making of an adoption order. (5)An adoption order may be made even if the child to be adopted is already an adopted child. (6)Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings. 47Conditions for making adoption orders (1)An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent). (2)The first condition is that, in the case of each parent or guardian of the child, the court is satisfied— (a)that the parent or guardian consents to the making of the adoption order, (b)that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c)that the parent's or guardian's consent should be dispensed with. (3)A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave. (4)The second condition is that— (a)the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, (b)either— (i)the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or (ii)the child was placed for adoption under a placement order, and (c)no parent or guardian opposes the making of the adoption order. (5)A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave. (6)The third condition is that the child is free for adoption by virtue of an order made— (a)in Scotland, under section 18 of the Adoption (Scotland) Act 1978 (c. 28), or (b)in Northern Ireland, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)). (7)The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made. (8)An adoption order may not be made in relation to a person who is or has been married. (9)An adoption order may not be made in relation to a person who has attained the age of 19 years. 48Restrictions on making adoption orders (1)The court may not hear an application for an adoption order in relation to a child, where a previous application to which subsection (2) applies made in relation to the child by the same persons was refused by any court, unless it appears to the court that, because of a change in circumstances or for any other reason, it is proper to hear the application. (2)This subsection applies to any application— (a)for an adoption order or a Scottish or Northern Irish adoption order, or (b)for an order for adoption made in the Isle of Man or any of the Channel Islands. 49Applications for adoption (1)An application for an adoption order may be made by— (a)a couple, or (b)one person, but only if it is made under section 50 or 51 and one of the following conditions is met. (2)The first condition is that at least one of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) is domiciled in a part of the British Islands. (3)The second condition is that both of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application. (4)An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application. (5)References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded.

***Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35

Appeal arising from findings that a High Court judge could not determine whether or not the children were at risk of harm. Appeal dismissed. The appeal was brought by counsel for the children's guardian on the basis that, in the light of the judge's findings the "artificiality of proceeding on the basis that such harm did not happen at all, when there is a real possibility that it did, is just as irresponsible and dangerous as proceeding on the basis that neither parent was the perpetrator". As a result he called for a reconsideration of the Lords decision of In Re H and to overrule In Re M & R as they lead to illogical results. The lead judgment in the Lords comes from Baroness Hale. She provides a thorough review of the development of the Court's approach to standards of proof since implementation of the Children Act before unequivocally stating that the basic civil standard of proof should apply, regardless of the seriousness of the allegations or the consequences: the "inherent probabilities are simply something to be **Re S-B (Children) [2009] UKSC 17 The facts of the case are set out in S-B (Children) [2009] EWCA Civ 1048. Before the Supreme Court the principal issue was whether the judge had directed herself correctly in finding that the threshold criteria relating to the second child had been reached on the basis that the mother had been a possible perpetrator of harm to the eldest child, although in the trial judge's words she had only been 40% likely to have been a perpetrator whereas her partner at the time was 60% likely to have been responsible. In this judgment Lady Hale traces the development of the law concerning the standard of proof and the correct approach to its application as to both the harm caused and identification of perpetrators. She reiterates that her own observations and those of Lord Hoffman in Re B "make it clear that the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case. This issue shows quite clearly that there is no necessary connection between the seriousness of an allegation and the improbability that it has taken place. The test is the balance of probabilities, nothing more and nothing less." She then goes on to conclude that i) "If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case"; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also "Important not to exaggerate the extent of the problem. It only really arises in split hearings...... In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child." into account, where relevant, in deciding where the truth lies". In coming to these conclusions she makes observations on how the concept of "heightened standard of proof" came to be in common use and clarifies where the criminal standard of proof may be required in civil cases.

Children Act 1989 s.44 - Emergency Protection Orders (EPO)

Orders for emergency protection of children. (1)Where any person ("the applicant") applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that— (a)there is reasonable cause to believe that the child is likely to suffer significant harm if— (i)he is not removed to accommodation provided by or on behalf of the applicant; or (ii)he does not remain in the place in which he is then being accommodated; (b)in the case of an application made by a local authority— (i)enquiries are being made with respect to the child under section 47(1)(b); and (ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or (c)in the case of an application made by an authorised person— (i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm; (ii)the applicant is making enquiries with respect to the child's welfare; and (iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency. (2)In this section— (a)"authorised person" means a person who is an authorised person for the purposes of section 31; and (b)"a person authorised to seek access" means— (i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or (ii)in the case of an application by an authorised person, that person. (3)Any person— (a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and (b)purporting to be a person authorised to do so, shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person. (4)While an order under this section ("an emergency protection order") is in force it— (a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant; (b)authorises— (i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or (ii)the prevention of the child's removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and (c)gives the applicant parental responsibility for the child. (5)Where an emergency protection order is in force with respect to a child, the applicant— (a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child; (b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and (c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection. (6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to— (a)the contact which is, or is not, to be allowed between the child and any named person; (b)the medical or psychiatric examination or other assessment of the child. (7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment. (8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be— (a)no such examination or assessment; or (b)no such examination or assessment unless the court directs otherwise. (9)A direction under subsection (6) may be— (a)given when the emergency protection order is made or at any time while it is in force; and (b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection. (10)Where an emergency protection order is in force with respect to a child and— (a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or (b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question, he shall return the child or (as the case may be) allow him to be removed. (11)Where he is required by subsection (10) to return the child the applicant shall— (a)return him to the care of the person from whose care he was removed; or (b)if that is not reasonably practicable, return him to the care of— (i)a parent of his; (ii)any person who is not a parent of his but who has parental responsibility for him; or (iii)such other person as the applicant (with the agreement of the court) considers appropriate. (12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so. (13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with— (a)his parents; (b)any person who is not a parent of his but who has parental responsibility for him; (c)any person with whom he was living immediately before the making of the order; [F1(d)any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;] (e)any person who is allowed to have contact with the child by virtue of an order under section 34; and (f)any person acting on behalf of any of those persons. (14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible. (15)A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child. (16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

*** Re J (Care Proceedings: Possible Perpetrators) [2013] UKSC 9

Section 31 (2) of the Children Act 1989 imposes a threshold which must be satisfied before a care or supervision order can be made in respect of a child. First the child must have suffered or be likely to suffer significant harm; secondly, that harm must be attributable to the care given or likely to be given to the child. If the threshold is crossed then the court will treat the welfare of the child as its paramount consideration when deciding whether to make an order. The issue in this case is whether a child can be regarded as 'likely to suffer' harm if another child has been harmed in the past and there is a possibility that the parent now caring for him or her was responsible for the harm to the other child. The local authority in this case brought care proceedings in respect of three children who are cared for by DJ and JJ. The two oldest are the children of DJ and his former partner, and have always lived with DJ. The youngest child is JJ's daughter, her third child with her former partner, SW. The local authority submitted that the three children were likely to suffer significant harm because JJ's first child with SW, T-J, had died of non-accidental injuries in 2004. In earlier care proceedings relating to JJ and SW's second child, who was subsequently adopted, a judge had found that either JJ or SW had caused the injuries to T-J and the other had at the very least colluded to hide the truth. In the present proceedings the local authority sought to rely solely on the finding that JJ was a possible perpetrator of the injuries to T-J. It submitted that this was a finding of fact sufficient as a matter of law to satisfy the s 31(2) threshold in respect of the three children now cared for by JJ and DJ. The High Court held on a preliminary issue that likelihood of significant harm can only be established by reference to past facts that are proved on the balance of probabilities. Mere possibility was insufficient. The Court of Appeal dismissed an appeal by the local authority but granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses the local authority's appeal. The main judgment is given by Lady Hale, with whom all the justices agree. Lord Wilson expresses disagreement on one point, which Lord Sumption shares. Lord Reed gives an additional judgment, with which Lord Clarke and Lord Carnwath agree. Lord Hope agrees with Lady Hale and Lord Reed. It is a serious matter for the state compulsorily to remove a child from his family of birth. The section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm [1] [75]. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities [36]. This approach is supported by the legislative history of section 31(2) [45-46] [96]. It would be odd if the first limb (actual harm) had to be proved to the court's satisfaction but the basis of predicting future harm did not [47]. Care cases in which the only matter upon which the authority can rely is the possibility that the parent has harmed another child in the past are very rare. Usually there will be many readily provable facts upon which an authority can rely [5]. Even in cases where the perpetrator of injuries could not be identified there may be a multitude of established facts from which a likelihood that this parent will harm a child in the future could be shown. However, the real possibility that the parent caring for the child has harmed a child in the past is not by itself sufficient [54]. In this case there were many potentially relevant facts found in the earlier proceedings against JJ which might have been relevant to an assessment of whether JJ would harm children in the future, such as the collusion with SW which prevented the court from identifying the perpetrator, the failure to protect T-J, and the deliberate failure to keep T-J away from health professionals [56]. Other relevant matters for the assessment would have been consideration of the household circumstances at the time of T-J's death and whether JJ's new relationship with DJ looking after much older children was different [53]. As the local authority had chosen not to rely on these facts, however, it would not be fair to the whole family to allow these proceedings to go on. JJ has been looking after these three children and a new baby for some time without (so far as the court is aware) giving cause for concern and, should the local authority wish to make a case that any of these children is likely to suffer significant harm in the future, it will be open to it to bring new proceedings [57]. Lord Wilson, while agreeing with Lady Hale for the most part and in the disposal of the appeal, identified an issue on which he differed from the majority. In his view, since the consignment of a person to a pool of possible perpetrators of injuries to one child could not constitute a factual foundation for a prediction of likely significant harm to another child in his or her care, then as a matter of logic, it could not become part of the requisite foundation in combination with other facts and circumstances [80]. Lord Sumption agreed [92].

S31Threshold Conditions ***Re MA (Care Threshold) [2009] EWCA Civ 853

The parents both came from Pakistan. They arrived in England, claiming asylum on the basis that both of them were homosexual, and were liable to persecution in Pakistan. Their claim was rejected. During the claim the mother gave birth to the couple's first child, and subsequently gave birth to a second child. At some stage a girl, aged 4 or 5, who may have been the father's niece, came to live with the family. Her presence in the family was concealed from the authorities for at least 6 months. When the father was unable to enrol the girl in a local school, he approached the authorities to obtain identity documentation. The immigration officer alerted the police, and the father was arrested on suspicion of child trafficking; the girl was taken into care. Over the next few months the girl made allegations of having been physically and sexually abused in the parents' home. As a result the parents' two children were accommodated by the authority, and the authority began care proceedings. The parents' eldest child, aged only 3, made certain statements suggesting that she had been beaten by the parents. The parent's third child was born before the care hearing, and was also accommodated by the authority. Shortly before the hearing it emerged that the girl's evidence of sexual abuse was unreliable because the ABE interview conducted the day after she had made her first allegation had been grossly flawed, as a result of the conduct of the interpreter. The judge was able, on the evidence, to make a finding that the parents had behaved in a shocking fashion in respect of the girl, threatening her, keeping a stick with which to beat her, and failing to meet her legal, practical and emotional needs. There was some evidence that the parents had been holding the girl as a hostage in a family financial dispute. It was accepted by the parents that in relation to the girl the threshold had been crossed, and the judge made it clear that there was no likelihood that she would be returned to the parents' care. The judge considered that the parents' children had not suffered harm as a result of being exposed to the parents' ill treatment of the girl. In general terms there was considerable evidence that the parents' own children had been well cared for by the parents, in that they were healthy, well nourished and had strong bonds of affection with the parents. However, in relation to the eldest child the judge found that she had been slapped at least twice by the mother, kicked at least three times, and hit to the side of her face at least twice by the father. The judge found that the stick kept to beat the girl had also been kept for use on the eldest child. He found that the eldest child had suffered harm as a result of the physical abuse she had suffered, and that such physical abuse was not acceptable. However, he did not consider that the child had suffered significant harm, or that any of the parent's three children was likely to suffer significant harm in the future. He concluded that the threshold had not been crossed in relation to the three children and dismissed the care proceedings relating to them. The guardian, supported by the local authority, appealed. The appeal was dismissed, by a majority, except that the judge's finding that the stick had been kept for the purposes of beating their eldest child, as well as the girl, was set aside, as there was no evidence to justify it. The judge had been full entitled to conclude that the harm suffered was not 'significant', and that, notwithstanding their treatment of the girl, the parents were not likely to inflict significant harm on their own children in future. The key issue was the meaning of the word 'significant' in the phrase 'significant harm'. Given the underlying philosophy of the Children Act 1989, the harm must be significant enough to justify the intervention of the State, disturbing the autonomy of the parents to bring their children up themselves in the way that they chose. Although Art 8 of the European Convention on Human Rights had more relevance at the disposal stage, it nonetheless informed the meaning of 'significant' and served to emphasise that there must be a 'relevant and sufficient' reason for crossing the threshold. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 the court had been wrong to suggest that the threshold for establishing significant harm was comparatively low. In Re H (Minors) Sexual Abuse: Standard of Proof) [1996] AC 563 Lord Nicholls had not been saying that the threshold for establishing the significance of the harm was comparatively low, but that the threshold was a low one in that there was no need to prove the likelihood of significant harm on a balance of probabilities, but only to establish a real possibility of significant harm.

Prohibited steps order (PSO)

is an order that prohibits (prevents) a specific step from being taken. Deals with a problem that has arisen (e.g. stops parent from having child circumcised against the wishes of the other parent etc.)...

Re A & B (Contact)(No4) [2015] EWHC 2839 (Fam)

• Biological F and his civil partner sought indirect contact with F's daughters. Biological M and her CP applied for s.91(14) order to be renewed. Children aged 14 and 10. 7yrs of litigation. • Held: CAO for indirect contact would be better for elder daughter than no order (in line with younger one) despite her opposition: F and CP could send letters, cards and gifts on b'days and at Xmas. Also to receive annual school reports. S.91(14) order renewed for two years.

Re A [2015] EWFC 4 • 'Modern family life can be complicated', per HHJ Bellamy - understatement?

• Complex set of facts. • Child, Alice (pseudonym), aged 9. Conceived through donor insemination, when mother, Rachel, was in Civil Partnership with non-biological mother, Helen. • Helen had two daughters from previous relationship. • One of them, Susan, had physical and learning difficulties. • Alice's biological father, David, was known to Helen & Rachel, he had some contact with Alice, but no Parental Responsibility and left UK to live overseas. • 2009: relationship between H & R broke down. • At time of relationship ending, Rachel suffering from serious mental illness & sectioned under Mental Health Act 1983 and placed into a secure unit... • Helen had physical and mental health problems of her own, including limited mobility, 'emotionally unstable personality disorder', anxiety and depression. Supported by local authority carers.... • Alice remained living with Helen, her non-biological mother... • 2009 Helen successfully obtained a s8 Residence Order... • Shortly after relationship with Rachel broke down, Helen began relationship with Matthew, Matthew, was a female to male transsexual. Matthew then at the start of his transition. • Matthew had a history of mental health issues: • Non-epileptic Attack Disorder, the emotional consequences of past abuse and other depressive and anxiety symptoms • Also, at that point in time, child, Alice, diagnosed with autism spectrum disorder. • Matthew moved in with Helen and Alice... • In 2013, relationship between Helen and Matthew broke down. Matthew had fully transitioned by this point. Had lived with Helen in family home for 4 years and had enjoyed an active involvement in Alice's life. Alice called Matthew 'Dad' even though she was aware that David was her biological father. Both adults agreed that they treated Alice as a 'child of the family'... • Following the breakdown of the relationship with Helen, Matthew moved out and went to live with James, a gay man. Matthew continued to see Alice occasionally, including some staying contact visits until mid-2014 when Helen prevented further contact. • Both Helen and Matthew accused each other of inappropriate behaviours ('controlling and verbally and mentally abusive)... • When Matthew and Helen were cohabiting Alice began to call herself Daniel and dress like a boy, saw herself as a boy, Helen concerned about this, she felt that Matthew was encouraging this. He denied it, but according to Helen, this behaviour stopped when Matthew moved out... • Matthew sought grant of leave to be able to make an application to resume contact with Alice via Child Arrangements Order... • - Leave application required as Matthew didn't meet criteria of s.10(9)(b) - where person with whom child has had a home for three years is automatically entitled to apply... • Although Matthew had lived in a home with Alice for over three years, he lost that entitlement because of the gap between leaving the family home and making the application - see s10(10) Children Act 1989.... • Court to have regard to nature of application; connection to child; risk to child's life (s.10(9) CA 1989).... • Welfare of Alice not court's paramount consideration, but did not mean that welfare completely irrelevant... • But no overriding principle ... • Matthew had played a part in caring for Alice when he was living with Helen, similar to that of a step-parent.... • By the time of the case Alice having regular contact with her biological Mother Rachel and her biological father David, they both opposed Matthew's application... • Balancing exercise: determined that Matthew's application was 'at its highest, barely arguable', and thus refused it. • The family already required significant support (both Alice and Helen had own social workers), and more support would be needed if hearing and litigation took place. Court satisfied on balance of probabilities that risk of Matthew's application disrupting Alice's life to such an extent she would suffer harm...

P v D, X, Y and Z [2014] EWHC 2355 (Fam)

• F convicted of raping M, and Fam Court determined he had physically abused her and two eldest daughters (now aged 20 and 17, youngest = 11). Since 2010, M and daughters had been in hiding, and F had tried repeatedly to locate them. • Held: PSO made to prohibit F from taking any steps in the exercise of his PR in respect of youngest child until 18 or further order made. Hence PR exclusively to be exercised by M. No duty on her to inform him on exercise of PR. • Further restraining orders attached.

Re L [2007] 1 FLR 2050

• Hedley J considered the meaning of 'significant harm': 'What about the court's approach . . to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.' There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done. That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s 31(2) is made out. Such an approach is clearly consistent with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in Re H and others that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy.'

Gibbs v Gibbs [2017] EWHC Civ 1700...

• Mother was committed to prison for breaching a PSO when she continually made untrue allegations that the Father had physically, sexually and emotionally abused their children... • Given her continued behaviour and disregard for the effect that her unfounded allegations were having on the children and their Father, prison was the only option available to the court... • Nine month sentence in light of the seriousness of the breach and the Mother's refusal to consider the consequences of her behaviour...

Education: Re G [2012] EWCA Civ 1233

• RO and SIO applications under s8 Children Act 1989.... • 5 children, 3 girls, 2 boys. • M & F both from Hassidic community of ultra Orthodox Jews; arranged marriage, which broken down after 10 years. • Family 'very religious' with specific observations determining their way of life, including education - Single sex schools only permitted • M no longer wanted to be member of Hassidic community, but still considered self an Orthodox Jew. • Lower Court: - M awarded RO with extensive contact for F, plus children to attend schools of M's choice - F appealed.... • CA: judge not plainly wrong re SRO, therefore that aspect of appeal denied. • Education = key element • In 2012 'what is the task of the reasonable parent?' What is the task of a judge, acting as a 'judicial reasonable parent'? [79] • Educational opportunity - judge plainly entitled to take view that M's schools would provide superior opportunities, fuller and wider education, greater job opportunities. • On balance, best interests met by M's proposals, not F's. Judge not shown to be plainly wrong.

Parental Responsibility is 'for life'....

• Unusual to 'lose' it, but not impossible, see next week.... • Even if the child is removed from the home due to child abuse, the parent(s) retain Parental Responsibility, but will be limited in their exercise of PR and in their ability to inhibit the way the Local Authority exercise the Parental Responsibility they have (more on this in weeks 8 and 9)... • Possible to delegate PR -see s2(7) Children Act 1989, e.g. if one parent is away from home, the other parent can exercise PR without checking every decision the other PR holder... Various PR holders 'share' the duties, responsibilities...

Re B (A Child) [2013] UKSC 33

• The case concerns the application of the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm and the role of the appellate courts once the trial judge has made an order. The child concerned was removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also has criminal convictions for dishonesty and a history of making false allegations. She has been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. In the course of the proceedings she was also diagnosed with factitious disorder, a related psychiatric condition involving the deliberate exaggeration or fabrication of symptoms and the recitation of a false medical history. In 2009 she escaped the abusive relationship with her stepfather, leaving behind their ten year old daughter, and quickly formed a relationship with the father of this child, who has been convicted of many serious offences. He has four older daughters, with whom he has an amiable relationship but his involvement in their lives has been marginal, not least because of the many years he has spent in prison. While the child was in interim care, the parents visited frequently and formed a good relationship with their daughter. They had shown their commitment to her 'in spades'. The trial judge found that, if placed in her parents' care, there was a risk that the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mother's behaviour, and at the very least be confused at the difference between the real world and her mother's dishonest presentation of it. There would have to be a multi-disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co-operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption. The Court of Appeal upheld that judgment. Both parents appealed to the Supreme Court. JUDGMENT The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismissed the appeal. REASONS FOR THE JUDGMENT The High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case [48, 64, 131]: • • Before a care order may be made under section 31 of the 1989 Act, the judge has to be satisfied that: (a) the child is suffering or is likely to suffer significant harm; and (b) the harm or likelihood of harm is attributable to the care likely to be given to the child if a care order is not made, not being what it would be reasonable to expect a parent to give to the child, or to the child's being beyond parental control [23, 177]. • A "likelihood" of significant harm means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. "Harm" means ill-treatment or impairment of health or development, and development includes emotional development. Whereas the concept of "ill-treatment" is absolute, the concept of "impairment of health or development" is relative to the health or development which could reasonably be expected of a similar child [24, 25, 178]. • Courts should avoid seeking to explain the meaning of the word "significant". However, the severity of the harm required is inversely correlated with the likelihood of the harm, i.e. the less likely the harm is to occur the more serious the harm will need to be [26, 56, 188]. Article 8 of the ECHR is not engaged when a court assesses whether or not harm is "significant" for these purposes; that provision will only be engaged in a case such as this if there is an interference with the right to respect for family life, which can only occur at the stage of determining whether or not a care or supervision order should be made [29, 62, 189]. • The character of the parents is relevant at every stage of the inquiry, including the assessment of whether the threshold conditions set out in section 31(2) of the 1989 Act have been satisfied because the character of the parents may affect the quality of their parenting [31, 71]. The conduct of the parents giving rise to harm or the likelihood of harm is not required to be intentional or deliberate; the harm or likelihood of harm need only be "attributable" to the care given by the parents or the care likely to be given by them not being what it would be reasonable to expect a parent to give to the child [31]. • A determination as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge at first instance; it is not an exercise of discretion. An appellate court may interfere with such a decision only if it is "wrong", but it need not have been "plainly wrong" [44, 61, 110, 139, 203]. In determining whether the threshold conditions for a care order are satisfied and whether it is appropriate to grant a care order, an appellate court must have regard to the advantages which the judge at first instance had over an appellate court, including the judge's ability to assess what may happen to the child in the future on the basis of the oral evidence given by the candidates for the care of the child [40¬42, 58-60]. • The High Court judge was also entitled to conclude that the making of a care order in relation to Amelia, with a view to her being adopted was necessary and did not violate the rights of Amelia, M, or F to respect for their family life under article 8 of the ECHR [48, 98, 131-133]: • • A high degree of justification is needed under article 8 if a decision is to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the child's parents. Domestic law runs broadly in parallel with article 8 in this context: the interests of the child must render it necessary to make an adoption order. A care order in a case such as this must be a last resort [34, 74-78, 82, 130, 135, 198, 215]. • Section 6 of the Human Rights Act 1998 does not require an appellate court to determine afresh issues relating to Convention rights; an appellate court, including the Supreme Court, is required only to conduct a review of the lower court's decision [36-37, 83-90, 136]. The making of a care order, however, is not a purely discretionary decision; a trial judge has an obligation under section 6 of the 1998 Act to ensure that he/she does not violate article 8 of the ECHR. Accordingly, it is not appropriate for an appellate court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, i.e. whether the lower court exceeded the generous ambit within which reasonable disagreement is possible [45]. The appropriate test is whether the lower court was "wrong" [47, 91-92, 139]. Lady Hale and Lord Kerr disagree with this analysis, taking the view that an appellate court reviewing whether a care order violates article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court) [115-120, 204-205]. • There are a number of features relative to the personalities of Amelia's parents, and to the psychiatric conditions of M, which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. The key feature of this case which justified the judge's decision not only that the threshold conditions for making a care order were satisfied but that such an order was appropriate was that Amelia's parents were unable to offer the elementary cooperation with professionals that her safety in their home would require. Adoption was the only viable option for Amelia's future [48, 99-100, 132, 106]. Lady Hale took the view that this was a case based on the mere possibility that the child would suffer psychological harm in the future. There was no risk that these parents would neglect or abuse their child. Even if this were sufficient to cross the threshold laid down in section 31(2) of the Children Act 1989, it had not been demonstrated that a care order with a view to adoption was necessary to protect the child - that 'nothing else would do' - when nothing else had been tried. The care order was not, therefore, a proportionate response to the harm which was feared.

How to decide: Re G (Children) (Residence: Same-sex partner) [2006] UKHL 43

Application for a 'joint residence order' (JRO)by a co-mother (CW) in favour of the children she and her former partner CG conceived through IVF treatment... When the women had split up the children had lived with G, but had regular contact with CW.... Obtaining a s8 JRO only means by which (at that time) CW could get PR for the children... Family originally lived together in Shropshire, birth mother CG moved with children to her new partner's home in Leicester, without telling CW. Lower Court refused residence order application, but Court of Appeal granted it on appeal. Also ordered CG to remain living in Leicester (she now wished to move to Cornwall ...) When permission to move to Cornwall was not forthcoming, CG and new partner took children to Cornwall to live there anyway, without notifying anyone... This was a breach of the Court Order. Subsequent set of proceedings: lower Court inverted the time to be spent with CG and CW, so CW became main carer. • Court concerned that CG in Cornwall with the children would fail to promote CW's relationship with them.... Court of Appeal upheld lower Court approach, but House of Lords reverted to original order (i.e. children to reside with CG, contact with CW). G's status as the 'natural mother' of significance, and the children were happy and doing well in her home, the welfare of the children was the paramount consideration. Although G had breached the order by moving to Cornwall, she had facilitated contact between the children and CW and was abiding by all other arrangements.... • This case was progressive re Parental Responsibility and same-sex co-parents, but there was a bit of confusion in the lower courts in respect of the 'natural parent' discussion ... • Issue raised in Re G [2006] UKHL 43 - same-sex partner, Hale LJ: 'The fact that CG is the natural mother of these children in every sense of that term, whilst 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.'...

Law before Children Act 1989

Disputes over "custody" and "access" encouraged a "winners and losers" mentality "Custody" itself was an unclear legal concept - Control? Ownership?

New' enforcement powers, amendments to CA 1989 by CAA 2006

contact directions (new ss.11A and 11B) contact conditions (new ss.11C and 11D) warning notice on all orders (new s.11I) unpaid work requirement (new s.11J) financial compensation order (new s.110)

Other s8 Orders -Prohibited steps order...

" 'a prohibited steps order' means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;" • PSOs can be free-standing (i.e. no other orders in place)... • E.g. Could be to prevent a child being taken outside the UK without the permission of the court....

Jurisdiction: s.10(1) CA 1989, power of court to make section 8 orders

(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if— (a) an application for the order has been made by a person who— (i) is entitled to apply ... or (ii) has obtained the leave of the court ... or (b) court considers that the order should be made even though no such application has been made.

Possible options for resolution of contact disputes (pre-2006 changes)?

(1) send party in breach of the order to prison... (2) impose fine on party in breach.... (3) transfer residence of child to other parent... (4) do nothing and give up....

s.31(1) Applicants for an order- LA or authorised person (defined under s.31(9)) Care and Supervision

(1)On the application of any local authority or authorised person, the court may make an order— (a)placing the child with respect to whom the application is made in the care of a designated local authority; or (b)putting him under the supervision of a designated local authority F1. . .. (2)A court may only make a care order or supervision order if it is satisfied— (a)that the child concerned is suffering, or is likely to suffer, significant harm; and (b)that the harm, or likelihood of harm, is attributable to— (i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii)the child's being beyond parental control. (3)No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married).

s.31 Threshold test for care and supervision orders 31Care and Supervision

(1)On the application of any local authority or authorised person, the court may make an order— (a)placing the child with respect to whom the application is made in the care of a designated local authority; or (b)putting him under the supervision of a designated local authority F1. . .. (2)A court may only make a care order or supervision order if it is satisfied— (a)that the child concerned is suffering, or is likely to suffer, significant harm; and (b)that the harm, or likelihood of harm, is attributable to— (i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii)the child's being beyond parental control. (3)No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married). [F2(3A)A court deciding whether to make a care order— (a)is required to consider the permanence provisions of the section 31A plan for the child concerned, but (b)is not required to consider the remainder of the section 31A plan, subject to section 34(11). [F3(3B)For the purposes of subsection (3A), the permanence provisions of a section 31A plan are— (a)such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following— (i)the child to live with any parent of the child's or with any other member of, or any friend of, the child's family; (ii)adoption; (iii)long-term care not within sub-paragraph (i) or (ii); (b)such of the plan's provisions as set out any of the following— (i)the impact on the child concerned of any harm that he or she suffered or was likely to suffer; (ii)the current and future needs of the child (including needs arising out of that impact); (iii)the way in which the long-term plan for the upbringing of the child would meet those current and future needs.] (3C)The Secretary of State may by regulations amend this section for the purpose of altering what for the purposes of subsection (3A) are the permanence provisions of a section 31A plan.] (4)An application under this section may be made on its own or in any other family proceedings. (5)The court may— (a)on an application for a care order, make a supervision order; (b)on an application for a supervision order, make a care order. (6)Where an authorised person proposes to make an application under this section he shall— (a)if it is reasonably practicable to do so; and (b)before making the application, consult the local authority appearing to him to be the authority in whose area the child concerned is ordinarily resident. (7)An application made by an authorised person shall not be entertained by the court if, at the time when it is made, the child concerned is— (a)the subject of an earlier application for a care order, or supervision order, which has not been disposed of; or (b)subject to— (i)a care order or supervision order; [F4(ii)a youth rehabilitation order within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008; or] [F5(iii)a compulsory supervision order or interim compulsory supervision order as defined by sections 83 and 86 of the Children's Hearings (Scotland) Act 2011. ] (8)The local authority designated in a care order must be— (a)the authority within whose area the child is ordinarily resident; or (b)where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made. (9)In this section— • "authorised person" means— (a) the National Society for the Prevention of Cruelty to Children and any of its officers; and (b) any person authorised by order of the Secretary of State to bring proceedings under this section and any officer of a body which is so authorised; • "harm" means ill-treatment or the impairment of health or development [F6including, for example, impairment suffered from seeing or hearing the ill-treatment of another]; • "development" means physical, intellectual, emotional, social or behavioural development; • "health" means physical or mental health; and • "ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical. (10)Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. (11)In this Act— • "a care order" means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and • "a supervision order" means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

s.33 Effect of a care order 33Effect of care order.

(1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force. (2)Where— (a)a care order has been made with respect to a child on the application of an authorised person; but (b)the local authority designated by the order was not informed that that person proposed to make the application, the child may be kept in the care of that person until received into the care of the authority. (3)While a care order is in force with respect to a child, the local authority designated by the order shall— (a)have parental responsibility for the child; and (b)have the power (subject to the following provisions of this section) to determine the extent to which [F1— (i)a parent, guardian or special guardian of the child; or (ii)a person who by virtue of section 4A has parental responsibility for the child,] may meet his parental responsibility for him. (4)The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare. (5)Nothing in subsection (3)(b) shall prevent [F2a person mentioned in that provision who has care of the child] from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare. (6)While a care order is in force with respect to a child, the local authority designated by the order shall not— (a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or (b)have the right— (i)F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii)to agree or refuse to agree to the making of an adoption order, or an order under [F4section 84 of the Adoption and Children Act 2002], with respect to the child; or (iii)to appoint a guardian for the child. (7)While a care order is in force with respect to a child, no person may— (a)cause the child to be known by a new surname; or (b)remove him from the United Kingdom, without either the written consent of every person who has parental responsibility for the child or the leave of the court. (8)Subsection (7)(b) does not— (a)prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or (b)apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2 [F5in England, and section 124 of the Social Services and Well-being (Wales) Act 2014 in Wales]). (9)The power in subsection (3)(b) is subject (in addition to being subject to the provisions of this section) to any right, duty, power, responsibility or authority which [F6a person mentioned in that provision] has in relation to the child and his property by virtue of any other enactment.

s.37 Powers of court 37Powers of court in certain family proceedings.

(1)Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances. (2)Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should— (a)apply for a care order or for a supervision order with respect to the child; (b)provide services or assistance for the child or his family; or (c)take any other action with respect to the child. (3)Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of— (a)their reasons for so deciding; (b)any service or assistance which they have provided, or intend to provide, for the child and his family; and (c)any other action which they have taken, or propose to take, with respect to the child. (4)The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs. (5)The local authority named in a direction under subsection (1) must be— (a)the authority in whose area the child is ordinarily resident; or (b)where the child [F1is not ordinarily resident] in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the direction is being given. (6)If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child— (a)they shall consider whether it would be appropriate to review the case at a later date; and (b)if they decide that it would be, they shall determine the date on which that review is to begin.

s.35 Supervision order Supervision orders.

(1)While a supervision order is in force it shall be the duty of the supervisor— (a)to advise, assist and befriend the supervised child; (b)to take such steps as are reasonably necessary to give effect to the order; and (c)where— (i)the order is not wholly complied with; or (ii)the supervisor considers that the order may no longer be necessary, to consider whether or not to apply to the court for its variation or discharge. (2)Parts I and II of Schedule 3 make further provision with respect to supervision orders.

• 'child arrangements order' means an order regulating arrangements relating to any of the following -

- (a) with whom a child is to live, spend time or otherwise have contact, and - (b) when a child is to live, spent time or otherwise have contact with any person;

Re N (Children) [2016] EWCA Civ 656

- 19 year old appealed against a decision refusing him leave to apply for a s8 Children Act CAO (contact) to see his 16 year old sister... - The two siblings had come to UK from Nigeria to live with their paternal aunt who lied to the authorities saying that the children's parents had died in order to obtain a s8 order. Boy complained that aunt abused him and he was removed into the care system, sister remained with aunt. Initial application for contact with sister unsuccessful. - On appeal, court reversed the decision. Children had been trafficked into UK and the two siblings were the only family present, the importance of maintaining family ties and a relationship of great importance to their well-being. Brother should have been granted leave to apply for the CAO....

The importance of language: (previously) 'shared' or 'joint' residence orders...

- Generally accepted by academics that 'joint residence' is where an order was made for two people who were living together, e.g. mum & step-dad; dad and step-mum... - 'Shared residence' is where an order is made for 2 or more, people who did not live together in the same household; e.g., separated mum and dad, dad and maternal grandmother...

- Persons needing leave to apply: Children (s.10(8)). need to demonstrate they have 'sufficient understanding'

- May be applying re themselves, or another child, e.g., younger sibling - Practice Direction Children Act - Applications by Children [1993] 1 FLR 668: must be heard in HC - See Re SC (A Minor) (Leave to seek s8 orders) [1994] 1 FLR 96 -14 year old girl living in local authority care in children's home, wanted to live with school -friend's family - application for leave to commence proceedings granted...

2. Investigation and Emergencies - CA 1989, ss 43-48 WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam)

- Mother supposedly making up symptoms for her own illness and children's illness, paediatrician advised that children should be taken away, court instigated interim care orders and took children into foster care without telling mother or father - Was held that children could be returned to the father in the absence of the mother, but ultimately mother and father agreed to a safeguarding plan which would mean the withdrawal of social services and for them to be replaced by health and school authorities - The application was granted because it engaged s1(1) CA1989 i.e. because it was relating to the child's upbringing, the welfare principle applied, and r1.1. civil procedures rules 1998 (these Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly [and at proportionate cost]) - Number of reasons for this finding: o the present signs were that the family could function alone o intervention against C's wishes was unlikely to be fruitful, given the ages of the eldest three o F had worked impressively with professionals to whose views he was profoundly opposed o the parents could be trusted to seek help if it was needed o it was expected that the family's recent experiences would make them cautious in their approach to reporting illnesses and that F would realise that he was central to C's health care o and it would not be healthy for C's development for them to be members of a family dependent on professional support - although some risks remained, they could be effectively managed through the safeguarding plan - whilst no criticism was intended of the local authority's or the judge's actions, it was important to emphasise that the local authority and the court owed separate and distinct duties to safeguard children's welfare by applying their own distinctive expertise. Further, a local authority had no duty slavishly to follow medical advice. The social worker, not the doctor, was the child care expert

Applicants for s.8 orders • Persons entitled as of right for ANY order s.10(4) (i.e. don't need to apply for leave to apply...)

- Parents, - guardians, - special guardians, - (some)step-parents, - those with a child arrangements order where they are named as a person with whom the child is to live...

For child arrangements orders only: (s.10(5))

- Party to marriage/Civil Partnership (whether or not subsisting) where child is 'child of the family'; - person with whom child has lived for 3yrs+; - Where there is a CAO in place regarding where/with whom the child should live - any person who has the consent of each person named in the order as a person with whom the child is to live - or if child in care, with consent of LA; - or if has consent of each of those - if any - with parental responsibility for child in Q - Any person who has PR via s.12(2A) - PR via CAO, for contact only - Court MAY make PR order in absence of 'residence'

direct' or 'indirect' contact

- Phone calls, skype/facetime, emails, letters may be subject to conditions/directions - (s.11(7) CA 1989) no 'right' for a parent to have contact with their child (but 'presumption' this will happen where it is safe ...) Similarly, child cannot 'force' a non-resident parent to have contact with them either ~ no 'right' of the child to have contact....

A Child Arrangements Order dealing with residence ceases if

- parents cohabit more than 6 months (s.11(5))e.g. reconciliation... - care order is made re child (s.91(2)) - at age 16 or 18 (s.91(11)) • court may discharge earlier - Nb. importance of welfare - (s.1(1) - including checklist in s.1(3) CA 1989, especially - (c) on 'likely effect on child of any changes in his circumstances...

Adoption and Children Act 2002 s21 - Placement Orders

21Placement orders (1)A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. (2)The court may not make a placement order in respect of a child unless— (a)the child is subject to a care order, (b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c)the child has no parent or guardian. (3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied— (a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b)that the parent's or guardian's consent should be dispensed with. This subsection is subject to section 52 (parental etc. consent). (4)A placement order continues in force until— (a)it is revoked under section 24, (b)an adoption order is made in respect of the child, or (c)the child marries or attains the age of 18 years. "Adoption order" includes a Scottish or Northern Irish adoption order. Adoption and Children Act 2002 s22 - Applications for Placement Orders Applications for placement orders (1)A local authority must apply to the court for a placement order in respect of a child if— (a)the child is placed for adoption by them or is being provided with accommodation by them, (b)no adoption agency is authorised to place the child for adoption, (c)the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and (d)the authority are satisfied that the child ought to be placed for adoption. (2)If— (a)an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or (b)a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption, the appropriate local authority must apply to the court for a placement order if they are satisfied that the child ought to be placed for adoption. (3)If— (a)a child is subject to a care order, and (b)the appropriate local authority are authorised to place the child for adoption under section 19, the authority may apply to the court for a placement order. (4)If a local authority— (a)are under a duty to apply to the court for a placement order in respect of a child, or (b)have applied for a placement order in respect of a child and the application has not been disposed of, the child is looked after by the authority. (5)Subsections (1) to (3) do not apply in respect of a child— (a)if any persons have given notice of intention to adopt, unless the period of four months beginning with the giving of the notice has expired without them applying for an adoption order or their application for such an order has been withdrawn or refused, or (b)if an application for an adoption order has been made and has not been disposed of. "Adoption order" includes a Scottish or Northern Irish adoption order. (6)Where— (a)an application for a placement order in respect of a child has been made and has not been disposed of, and (b)no interim care order is in force, the court may give any directions it considers appropriate for the medical or psychiatric examination or other assessment of the child; but a child who is of sufficient understanding to make an informed decision may refuse to submit to the examination or other assessment. (7)The appropriate local authority— (a)in relation to a care order, is the local authority in whose care the child is placed by the order, and (b)in relation to an application on which a care order might be made, is the local authority which makes the application.

When to use the s1(3) 'welfare check-list'....

4) The circumstances are that— • (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or • (b) the court is considering whether to make, vary or discharge [a special guardianship order or] an order under Part IV. • But be aware of the 'No Order Principle' -s1(5) Children Act 1989 'Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all'...

Children Act 1989 s.46 Removal and accommodation of children by police in cases of emergency

46Removal and accommodation of children by police in cases of emergency. (1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may— (a)remove the child to suitable accommodation and keep him there; or (b)take such steps as are reasonable to ensure that the child's removal from any hospital, or other place, in which he is then being accommodated is prevented. (2)For the purposes of this Act, a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection. (3)As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall— (a)inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them; (b)give details to the authority within whose area the child is ordinarily resident ("the appropriate authority") of the place at which the child is being accommodated; (c)inform the child (if he appears capable of understanding)— (i)of the steps that have been taken with respect to him under this section and of the reasons for taking them; and (ii)of the further steps that may be taken with respect to him under this section; (d)take such steps as are reasonably practicable to discover the wishes and feelings of the child; (e)secure that the case is inquired into by an officer designated for the purposes of this section by the chief officer of the police area concerned; and (f)where the child was taken into police protection by being removed to accommodation which is not provided— (i)by or on behalf of a local authority; or (ii)as a refuge, in compliance with the requirements of section 51,secure that he is moved to accommodation which is so provided. (4)As soon as is reasonably practicable after taking a child into police protection, the constable concerned shall take such steps as are reasonably practicable to inform— (a)the child's parents; (b)every person who is not a parent of his but who has parental responsibility for him; and (c)any other person with whom the child was living immediately before being taken into police protection, of the steps that he has taken under this section with respect to the child, the reasons for taking them and the further steps that may be taken with respect to him under this section. (5)On completing any inquiry under subsection (3)(e), the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released. (6)No child may be kept in police protection for more than 72 hours. (7)While a child is being kept in police protection, the designated officer may apply on behalf of the appropriate authority for an emergency protection order to be made under section 44 with respect to the child. (8)An application may be made under subsection (7) whether or not the authority know of it or agree to its being made. (9)While a child is being kept in police protection— (a)neither the constable concerned nor the designated officer shall have parental responsibility for him; but (b)the designated officer shall do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare (having regard in particular to the length of the period during which the child will be so protected). (10)Where a child has been taken into police protection, the designated officer shall allow— (a)the child's parents; (b)any person who is not a parent of the child but who has parental responsibility for him; (c)any person with whom the child was living immediately before he was taken into police protection; [F1(d)any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;] (e)any person who is allowed to have contact with the child by virtue of an order under section 34; and (f)any person acting on behalf of any of those persons, to have such contact (if any) with the child as, in the opinion of the designated officer, is both reasonable and in the child's best interests. (11)Where a child who has been taken into police protection is in accommodation provided by, or on behalf of, the appropriate authority, subsection (10) shall have effect as if it referred to the authority rather than to the designated officer.

Re M (A Minor) (Care Orders: Threshold Conditions) [1994] 3 All ER 298 -

A care order is preferable to a residence order in cases of children who are "suffering or likely to suffer" significant harm as under s31(2) CA1989 on the date at which the local authority initiates protective arrangements - Basically the "threshold conditions" are that the child was suffering or was likely to suffer significant harm. The importance of this judgment was that it held that the date at which the court must consider when determining this threshold condition was the date at which the local authority initiated procedure for protection under the act - In this case the father of M (child) had murdered M's mother and under emergency proceedings taken by local authorities, M was put into foster care while his siblings were made the subject of a residence order in favour of W, the mother's maternal cousin - After F was convicted and recommended for deportation, W applied for a residence order for M. F supported the making of a care order which was granted only on the basis that it was temporary, and with a view for future adoption outside the family - On appeal to CA, W won out so M remained with her, and did so until the appeal in HL where it was decided that CA did have jurisdiction to make a care order, (overruling Oldham MBC v E ), that it would be wrong to disturb the current arrangements, but the care order should be restored (rather than residence order) so that the local authority could continue to monitor the child (which they could not do in a residence order), but the most important consideration (I think) was determining the date at which the court had to consider the threshold test in the context of the date of assessing suffering was the date at which the local authority initiated procedure for protection under the act

s. 31(2)(b) (i) "Attributable to the care given" to the child: **Lancashire CC v B [2000] 2 AC 157, [2000] 1 FLR 583

A seven month old child had been injured, but it was not possible to establish whether this had taken place whilst with her parents or with a child minder. The Council brought care proceedings also for the minder's own child B. Held: Even though the parents could not be held responsible, the threshold conditions which would allow proceedings for a care order to be begun were established. To require proof of who had committed the abuse would make it frequently impossible for the authorities to act to protect children. The phrase 'care given to the child' did not require restriction to the care given by the parents or by a particular person. 'Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case, the phrase 'care given to the child' is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers.

• Re U (Children) [2016] EWCA Civ 1322

Appeal by Mother against a CAO setting out that her third child should live with the F. M and F had 4 children and a difficult relationship. Much litigation between parties, Older 3 children lived with M, and youngest with F. Judge found that M had encouraged children to become alienated against F, and implacable hostility towards contact. M considered to have caused emotional harm to the children and that it would be best for all 4 children to live with F. Impractical as childrens' views entrenched, so only 3rd child's residence transferred...

In the matter of L-A (Children) [2009] EWCA Civ 822

Appeal by local authority against refusal to allow removal of children from their home in care proceedings arising out of alleged chronic neglect. Appeal allowed and matter sent for retrial. The local authority's application for a care order was supported by the children's guardian but the trial judge instead favoured an interim care order. He had reached this conclusion primarily on the basis that he was bound by the decision of Ryder J in Re L that there had to "an imminent risk of really serious harm" before removing the children and that was not the case here. In this appeal, counsel for the local authority argued that the trial judge had misdirected himself as he had based his decision on the conclusion that the judgment in Re L had extended the current authorities on removal and raised the bar for the local authority. Thorpe LJ agreed, as it was common ground that Ryder J had not intended to go beyond the existing authorities and added "Plainly the judge was wrong to think that the words of Ryder J that there should be an imminent risk of really serious harm prevented him from doing what he instinctively felt the welfare of the children required."

• Re A [2015] EWCA Civ 486

Child -3 yr old girl. M had left F and alleged 3 DV incidents, & sexual assaults, including 'marital rape'. Judge found these were proved, but nevertheless ordered supervised contact between the child and Father once a week, for one hour (initially). • M appealed, alleged judge had minimised the issues and ignored Re L guidance and practice directions. • M having treatment for PTSD, caused by sexual assault during marriage. Judge had ordered immediate contact. • Judge's description of 'low-level' DV was justified, physical contact was minimal and no reported injuries, events arose out of short-term anger. • Re L followed with regard to risk assessment, including risk to mother. Despite fact judge did not reference FPR PD 12J it was clear his analysis had been correctly conducted in a 'compatible manner'. • Ordering supervised face-to-face contact was in A's best interests was well within the range of justifiable welfare determinations. [nb. no risk to child re sexual abuse]

Re B [2009] UKSC 5.

Child aged 4 had lived with his grandmother since birth. A s8 RO was granted to her with the support and consent of the child's parents. Contact with both parents also ordered, Grandmother facilitated the contact even when the F was sentenced to prison. Subsequently the Mother applied for a RO, this was then followed by an application by the F who following his release from prison had set up a home with his new partner and their child. M supported F's application. Court transferred residence of the child to the F. G appealed and was unsuccessful, her right to appeal was dismissed. • Further leave for appeal granted and the G was successful in getting the transfer of residence to the Father overturned. Natural parent presumption.... • Re B [2009] UKSC 5 - grandmother, Lord Hope: 'It is only a contributor to the child's welfare that parenthood assumes any significance.' In this case the court had made an error in considering that it is a child's 'right' to be brought up by a natural parent. The correct focus as per s1 Children Act 1989 was the welfare principle. The fact that F in this case would be 'a good enough parent' would not facilitate the child's best interests. B had lived all his life with G, had a strong bond with her, if that bond was broken by transferring residence to the F's home 30 miles away, there would be a huge disruption to the child..... • Under the original Children Act 1989, s.11(4) enabled the court to 'specify the periods during which the child is to live in the different households concerned.'

Children Act 1989 s.43 - Child Assessment Orders (CAO)

Child assessment orders. (1)On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that— (a)the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm; (b)an assessment of the state of the child's health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and (c)it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section. (2)In this Act "a child assessment order" means an order under this section. (3)A court may treat an application under this section as an application for an emergency protection order. (4)No court shall make a child assessment order if it is satisfied— (a)that there are grounds for making an emergency protection order with respect to the child; and (b)that it ought to make such an order rather than a child assessment order. (5)A child assessment order shall— (a)specify the date by which the assessment is to begin; and (b)have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order. (6)Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child— (a)to produce him to such person as may be named in the order; and (b)to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order. (7)A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order. (8)Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment. (9)The child may only be kept away from home— (a)in accordance with directions specified in the order; (b)if it is necessary for the purposes of the assessment; and (c)for such period or periods as may be specified in the order. (10)Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home. (11)Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to— (a)the child's parents; (b)any person who is not a parent of his but who has parental responsibility for him; (c)any other person caring for the child; [F1(d)any person named in a child arrangements order as a person with whom the child is to spend time or otherwise have contact;] (e)any person who is allowed to have contact with the child by virtue of an order under section 34; and (f)the child, before the hearing of the application. (12)Rules of court may make provision as to the circumstances in which— (a)any of the persons mentioned in subsection (11); or (b)such other person as may be specified in the rules, may apply to the court for a child assessment order to be varied or discharged. (13)In this section "authorised person" means a person who is an authorised person for the purposes of section 31.

Standard of proof: * Re H (Minors) (sexual abuse: standard of proof) [1996] 1 All ER 1

Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still been been found. Held: A care order could only to be made if the need was proved on the facts, however strong is the suspicion. The House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) 'likely' does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. This is a comparatively low level of risk. (Majority) For the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future.' The court will require cogent evidence before making a finding of dishonesty: the very gravity of an allegation of fraud is a circumstance which has to be weighed in the scale in deciding as to the balance of probabilities. 'Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.' Lord Nicholls of Birkenhead said: 'The balance of probability standard means that the court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation . . Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts [1964] 1 WLR 451,455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.' This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ of Hornal v Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probabilities standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters. No doubt it is this feeling which prompts judicial comment from time to time that grave issues call for proof to a standard higher than the preponderance of probability." Lord Browne-Wilkinson dissenting, said that 'the facts relevant to an assessment of risk ('is likely to suffer . . harm') are not the same as the facts relevant to a decision that harm is in fact being suffered. In order to be satisfied that an event has occurred or is occurring the evidence has to show on balance of probabilities that such event did occur or is occurring. But in order to be satisfied that there is a risk of such an occurrence, the ambit of the relevant facts is in my view wider. The combined effect of a number of factors which suggest that a state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk. To be satisfied of the existence of a risk does not require proof of the occurrence of past historical events but proof of facts which are relevant to the making of a prognosis.'

Adoption and Children Act 2002 s1- Consideration applying to the exercise of powers

Considerations applying to the exercise of powers (1)This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child. (2)The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life. (3)The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare. (4)The court or adoption agency must have regard to the following matters (among others)— (a)the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding), (b)the child's particular needs, (c)the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d)the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant, (e)any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering, (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i)the likelihood of any such relationship continuing and the value to the child of its doing so, (ii)the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, (iii)the wishes and feelings of any of the child's relatives, or of any such person, regarding the child. (5)In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background. (6)The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so. (7)In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes— (a)coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order), (b)coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act, but does not include coming to a decision about granting leave in any other circumstances. (8)For the purposes of this section— (a)references to relationships are not confined to legal relationships, (b)references to a relative, in relation to a child, include the child's mother and father.

Adoption and Children Act 2002 s26 - Contact

Contact (1)On an adoption agency being authorised to place a child for adoption, or placing a child for adoption who is less than six weeks old, any provision for contact under the 1989 Act ceases to have effect. (2)While an adoption agency is so authorised or a child is placed for adoption— (a)no application may be made for any provision for contact under that Act, but (b)the court may make an order under this section requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other. (3)An application for an order under this section may be made by— (a)the child or the agency, (b)any parent, guardian or relative, (c)any person in whose favour there was provision for contact under the 1989 Act which ceased to have effect by virtue of subsection (1), (d)if a residence order was in force immediately before the adoption agency was authorised to place the child for adoption or (as the case may be) placed the child for adoption at a time when he was less than six weeks old, the person in whose favour the order was made, (e)if a person had care of the child immediately before that time by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, that person, (f)any person who has obtained the court's leave to make the application. (4)When making a placement order, the court may on its own initiative make an order under this section. (5)This section does not prevent an application for a contact order under section 8 of the 1989 Act being made where the application is to be heard together with an application for an adoption order in respect of the child. (6)In this section, "provision for contact under the 1989 Act" means a contact order under section 8 of that Act or an order under section 34 of that Act (parental contact with children in care).

The test for whether a child is suffering significant harm is assessed on a balance of probabilities

Is the child's situation within definition of "harm"? - Children Act 1989, s 31 [note the s 31(9) definition of "harm"] - care and supervision orders

Significant harm' - Children Act 1989 s.31(10) **In the matter of S (A child) [2009] EWCA Civ 945

L was 6 years old. Her parents separated when she was 15 months. At a hearing before HHJ Hamilton, the father sought a shared residence order and the mother a sole residence order. Much of the two day time estimate was used for negotiation between the parties but a full agreement was not reached and the judge adjudicated on the outstanding issues late on the second day. The order made provided variously that "the father shall have the care of L", "the care of L within the school holidays shall be arranged as follows", "L will be cared for by her father", "L will spend Christmas 2009 with her father, and "L may be in the care of her father for such further and alternative periods that may be agreed in writing". The father appealed. Thorpe LJ held that there was nothing in the statute, and in particular in the language of s8(1) Children Act 1989, that allowed the court to impose provisions as to one parent or the other 'caring' for or 'having the care of' a child other than in the form of a contact order. It was not permissible to use a prohibited steps or specific issue order. Thorpe LJ also restated the principle enunciated by Ward LJ in Re B (a child) [2001] EWCA Civ 1968 that "a contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person". The appeal was allowed and the order set aside. The matter was remitted to the county court. As the practical arrangements enshrined in the order were working well the court expressed the hope that a further hearing could be avoided.

Children Act 1989 Part V Protection of Children Children Act 1989 s.47 - Local Authority's (LA) Duty to Investigate

Local authority's duty to investigate. (1)Where a local authority— (a)are informed that a child who lives, or is found, in their area— (i)is the subject of an emergency protection order; or (ii)is in police protection; F1. . . (iii)F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. F2. . . (2)Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child's welfare. (3)The enquiries shall, in particular, be directed towards establishing— [F3(a)whether the authority should— (i)make any application to court under this Act; (ii)exercise any of their other powers under this Act; (iii)exercise any of their powers under section 11 of the Crime and Disorder Act 1998 (child safety orders); or (iv)(where the authority is a local authority in Wales) exercise any of their powers under the Social Services and Well-being (Wales) Act 2014; with respect to the child;] (b)whether, in the case of a child— (i)with respect to whom an emergency protection order has been made; and (ii)who is not in accommodation provided by or on behalf of the authority, it would be in the child's best interests (while an emergency protection order remains in force) for him to be in such accommodation; and (c)whether, in the case of a child who has been taken into police protection, it would be in the child's best interests for the authority to ask for an application to be made under section 46(7). (4)Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable— (a)to obtain access to him; or (b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose, unless they are satisfied that they already have sufficient information with respect to him. (5)Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child's education which should be investigated, they shall consult [F4the local authority (as defined in section 579(1) of the Education 1996), if different, specified in subsection (5ZA). (5ZA)The local authority referred to in subsection (5) is— (a)the local authority who — (i)maintain any school at which the child is a pupil, or (i)make arrangements for the provision of education for the child otherwise than at school pursuant to section 19 of the Education Act 1996, or (b)in a case where the child is a pupil at a school which is not maintained by a local authority, the local authority in whose area the school is situated.] [F5(5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare— (a)ascertain the child's wishes and feelings regarding the action to be taken with respect to him; and (b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.] (6)Where, in the course of enquiries made under this section— (a)any officer of the local authority concerned; or (b)any person authorised by the authority to act on their behalf in connection with those enquiries— (i)is refused access to the child concerned; or (ii)is denied information as to his whereabouts, the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so. (7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall— (a)consider whether it would be appropriate to review the case at a later date; and (b)if they decide that it would be, determine the date on which that review is to begin. (8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so). (9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so. (10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case. (11)The persons are— (a)any local authority; (b)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c)any local housing authority; [F7(ca)the National Health Service Commissioning Board;", and] (d)any [F8clinical commissioning group,][F9[F10Local Health Board] , Special Health Authority]F11...[F12, National Health Service trust or NHS foundation trust]; and (e)any person authorised by the Secretary of State for the purposes of this section. (12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.

S44 Emergency Protection Orders ***X County Council v B (Emergency Protection Orders) [2004] 1 FLR 341

Munby J reviewed the grant of Emergency Protection Orders, and summarised the applicable law: 'The matters I have just been considering are so important that it may be convenient if I here summarise the most important points: (i) An EPO, summarily removing a child from his parents, is a 'draconian' and 'extremely harsh' measure, requiring 'exceptional justification' and 'extraordinarily compelling reasons'. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child's safety: 'imminent danger' must be 'actually established'. (ii) Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents. (iii) Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety. (iv) If the real purpose of the local authority's application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a CAO under s 43 of the Children Act 1989. (v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety. (vi) The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning. (vii) Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon. (viii) Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency - and even then it should normally be possible to give some kind of albeit informal notice to the parents - or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on. (ix) The evidential burden on the local authority is even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law. (x) Section 45(7)(b) of the Children Act 1989 permits the FPC to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the FPC. It is, therefore, particularly important that the FPC complies meticulously with the mandatory requirements of rr 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The FPC must 'keep a note of the substance of the oral evidence' and must also record in writing not merely its reasons but also any findings of fact. (xi) The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and 21(8), is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. The local authority's legal representatives should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the FPC or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide. (xii) Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its parental responsibility only in such manner 'as is reasonably required to safeguard or promote the welfare of the child'. Section 44(5)(a) provides that the local authority shall exercise its power of removal under s 44(4)(b)(i) 'only . . in order to safeguard the welfare of the child'. The local authority must apply its mind very carefully to whether removal is essential in order to secure the child's immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The FPC decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented. (xiii) Consistently with the local authority's positive obligation under Art 8 to take appropriate action to reunite parent and child, s 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if 'it appears to [the local authority] that it is safe for the child to be returned'. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child's safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence. (xiv) Section 44(13) of the Children Act 1989 requires the local authority, subject only to any direction given by the FPC under s 44(6), to allow a child who is subject to an EPO 'reasonable contact' with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.'

Children Act 1989 s.37(1) - Permits court to require LA to investigate

Powers of court in certain family proceedings. (1)Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances. (2)Where the court gives a direction under this section the local authority concerned shall, when undertaking the investigation, consider whether they should— (a)apply for a care order or for a supervision order with respect to the child; (b)provide services or assistance for the child or his family; or (c)take any other action with respect to the child. (3)Where a local authority undertake an investigation under this section, and decide not to apply for a care order or supervision order with respect to the child concerned, they shall inform the court of— (a)their reasons for so deciding; (b)any service or assistance which they have provided, or intend to provide, for the child and his family; and (c)any other action which they have taken, or propose to take, with respect to the child. (4)The information shall be given to the court before the end of the period of eight weeks beginning with the date of the direction, unless the court otherwise directs. (5)The local authority named in a direction under subsection (1) must be— (a)the authority in whose area the child is ordinarily resident; or (b)where the child [F1is not ordinarily resident] in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the direction is being given. (6)If, on the conclusion of any investigation or review under this section, the authority decide not to apply for a care order or supervision order with respect to the child— (a)they shall consider whether it would be appropriate to review the case at a later date; and (b)if they decide that it would be, they shall determine the date on which that review is to begin.

Adoption and Children Act 2002 s24 - Revoking Placement Orders

Revoking placement orders (1)The court may revoke a placement order on the application of any person. (2)But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless— (a)the court has given leave to apply, and (b)the child is not placed for adoption by the authority. (3)The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made. (4)If the court determines, on an application for an adoption order, not to make the order, it may revoke any placement order in respect of the child. (5)Where— (a)an application for the revocation of a placement order has been made and has not been disposed of, and (b)the child is not placed for adoption by the authority, the child may not without the court's leave be placed for adoption under the order.

SRO another example... • T v T [2010] EWCA Civ 1366 -

SRO granted to 3 parties on facts. 2 children aged 10 and 7 respectively. Mother in CP with a woman, L. Father cohabiting with a man. M and F met when F advertised that he would like to have children and M and L who also wanted to become parents responded to the ad. Children lived most of their lives with M and L. F had PR for both children and had contact and involvement since the births. Relationship between M, F and L broke down, hence court proceedings. Court first instance made a SRO in favour of M and F setting out schedule of arrangements. 'Significant' but not equal time with F. In the case PR also granted to L, but court refused M's request to have F's PR restricted. Case to be reviewed in 12 months. • CA - M and L appealed to have F's SRO set aside to be replaced by a JRO in favour of M and L; or a JRO for M,L and F. M and L were concerned that if any order in place did not include L, in the event of M dying, F would be able to remove the children from the home they shared with M and L.... • Appeal allowed in part, SRO replaced by JRO in favour of M,F and L as this was in the best interests of the children and was WP compliant....

• Re F [2003] EWCA Civ 592

Separated parents living in Hampshire (Father naval officer), Mother considering relocating to Scotland. Such a distance between the parents' respective homes did not preclude the making of a SRO as it was possible for the children's year to be organised in such a way to facilitate shared residence....

s.31(2) (a) "Is likely to suffer": ***Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35

The appeal was brought by counsel for the children's guardian on the basis that, in the light of the judge's findings the "artificiality of proceeding on the basis that such harm did not happen at all, when there is a real possibility that it did, is just as irresponsible and dangerous as proceeding on the basis that neither parent was the perpetrator". As a result he called for a reconsideration of the Lords decision of In Re H and to overrule In Re M & R as they lead to illogical results. The lead judgment in the Lords comes from Baroness Hale. She provides a thorough review of the development of the Court's approach to standards of proof since implementation of the Children Act before unequivocally stating that the basic civil standard of proof should apply, regardless of the seriousness of the allegations or the consequences: the "inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies". In coming to these conclusions she makes observations on how the concept of "heightened standard of proof" came to be in common use and clarifies where the criminal standard of proof may be required in civil cases.

s. 31(2) (a) "Is suffering": **Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 575

The father had been sentenced to life imprisonment for the murder of the child's mother. Application was made for the child to be made subject to a care order. The father appealed refusal of an order. Held: When an application was made on the basis that a child was suffering significant harm after making interim arrangements for his protection which were in place at the date of the hearing, the relevant date at which the court had to be satisfied as to the presence of threshold conditions was the date on which protective arrangements were put in place. The court could not work from that date where, after that date, the need had passed. Where a court had to choose a care order or a residence order, section 1(3)(g) required it to be satisfied that the power to make an order was still available.

***Re J (Children) [2013] UKSC 9

The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child's death. Now, whilst in a later relationship she gave birth to a further child of the father in that first relationship. The authority began care proceedings and now appealed against rejection of its request for a care order. The order was sought based upon the historical evidence, but the courts below had said, in accordance with authority, that in establishing the threshold condition from an earlier finding, a court could only act where that finding was that harm was caused by the parent on the balance of probabilities. A suspicion that she might be at fault was not enough. Held: The appeal failed. Lady Hale delivered the leading speech. The court emphasised the seriousness of removing a child from the parents, and the vital importance of the threshold test to protect families from unwarranted intrusion. The issue in one form or another had reached the highest courts on six previous occasions, and the courts have consistently found that a prediction of future harm must be based upon facts proven on at least a balance of probabilities. The case had been artficially constructed to test the point, and it should be remembered that such cases are rare. In particular here, the authority had chosen not to bring in any allegation as to the current arrangements. The child had now been living within these current stable arrangements without any suggestion of harm occurring. Lords Wilson and Sumption dissenting in part, said that where a previous hearing had been able only to identify the parent as one in a pool of possible perpetrators, and that could not found an allegation of a risk of serious harm to another child of that carer, it would, from logic, also not properly serve as part of the requisite foundation alongside other facts.

If a person does not already have Personal Responsibility....

Then a Child Arrangements Order naming them as a person with whom the child will live, will also confer parental responsibility (PR) on them. See - S12(2), s12(2A) & (3) Children Act 1989 Remember though that the Child Arrangements Order does not 'remove' the Parental Responsibility of others, see further s.2(7) Children Act 1989.....

S S46 Removal and Accommodation by Police Orders *Langley and others v Liverpool City Council and another [2006] 2 All ER 202

These proceedings concerned the lawfulness of the removal of three children of the family into the care of foster parents. After a five-day trial, the judge found that: the Council had acted unlawfully in relation to the removal of all three children; the Council was liable to all five claimants (including the parents) for assault and false imprisonment as well as for breach of their rights under Article 8 of the European Convention on Human Rights ('the Convention'); and the Chief Constable had acted unlawfully in relation to the removal of the youngest child, and he was liable to him for assault and false imprisonment. But the judge dismissed the claims by the parents and the youngest child that the Chief Constable had violated their Article 8 rights. Both the Council and the Chief Constable appealed against the findings of liability, and the youngest child and the parents appealed against the dismissal of their claim that the removal of the youngest child was in breach of their Article 8 rights. At the heart of these appeals lay an important question concerning the powers of the police under the Children Act 1989 ('the Act') to remove children who are in need of emergency protection, in particular the relationship between sections 44 and 46 of the Act. The court reviewed the facts, the statutory framework, and the judgment of the trial judge, and considered the following two questions: (1) was the judge right to hold that, once an emergency protection order ('EPO') had been granted under section 44 and so long as it remained in force, the police could not exercise the power to remove a child under section 46 even if the constable had reasonable cause to believe that, unless the child was removed, he or she was likely to suffer significant harm? and (2) on the assumption that the criteria in section 46(1) were met, were there any limitations on the power of the police to remove a child under section 46 where an EPO was in existence? The court then proceeded to assess the lawfulness of the removal of the children, the liability of the Chief Constable and the Council therefor, and the lawfulness of the decision to seek an EPO, as well as the execution by the Council of the EPOs in respect of all three children. Judgment Held, (1) dismissing the Chief Constable's appeal, (2) dismissing the Council's appeal against the findings of liability in relation to the removal of the youngest child, but allowing it in relation to the removal of the other two children; and (3) allowing the appeal of the first three claimants against the dismissal of their claims for breach of Article 8, that: (1) the removal of the youngest child was unlawful, and the police officer who came to remove him should have asked the Council's Emergency Duty Team ('EDT') to execute the EPO rather than forming his own judgment as to whether to remove the child under section 46; (2) the Council had played a major part in securing the removal of the youngest child, by failing to advise the police officer to ensure that the child remained in the house until members of the EDT could come to execute the EPO; but the Council's decision to seek and execute the EPO in respect of the other two children was a reasonable and proportionate response to the threat that they faced; and (3) the removal of the youngest child by the police officer was unlawful and therefore not 'in accordance with the law', and it was no answer to the claim to find that the police officer's actions were 'not disproportionate to the situation as he found it'. Accordingly, in relation to the questions posed above, the court found that (i) removal of children should usually be effected pursuant to an EPO, and (ii) section 46 should be invoked only where it was not practicable to execute an EPO. In deciding whether it was practicable to execute an EPO, the police must always have regard to the paramount need to protect children from significant harm. Thorpe LJ added his own comments, from the perspective of a family lawyer, to the judgment of the court, and confirmed that the Council had been correct to seek an EPO in respect of the two older children, since Parts IV and V of the Children Act 1989 provide the state, in appropriate circumstances, with power to intervene in the life of a family.

Re X (Emergency Protection Orders) [2006] 2 FLR 701

Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family. Held: The decision making processes adopted by both the authority and the family court were badly flawed. An Emergency Protection Order was potentially harsh in its effect, and one should not be granted unless it was clear that no alternative existed which would satisfy the need to secure the child's welfare. The social worker had presented thirteen points to the magistrates. Each point had been either misleading or wrong. The magistrates had not given adequate reasons and had not treated what was a most important decision properly. The court gave specific guidance for the conduct of future cases. McFarlane J said: 'The ordinary experience of the family courts is of social workers and social services departments whose professional work is both valuable and appropriately targeted to meeting the particular needs of children and their families.'

D v D [2001] 1 FLR 495 -

case about three children who had very close relationships with both parents, father keen to have a SRO, mother unhappy and said that the court should only make such an order if exceptional reasons. Court - unnecessary to show exceptional circumstance, more important to show on the facts of the particular case that the welfare principle and the children's best interests (as per s1 Children Act 1989) would be met by a SRO

What if parents split up and the one with the child wants to move away?... • Starting point - Payne v Payne [2001] 1 FLR 1052 (tutorial reading!)

establishes that 'the welfare of a child is best served by considering issues of care, and who can best provide that care is an issue to be decided in advance of considering relocation'[para 8] • HOWEVER, more recent cases tell us that actually too much focus on just one aspect such as who the 'best carer' would be is incorrect, what SHOULD happen (in any welfare consideration) is a global and holistic analysis of the child's best interests measured against the available options- a balancing of ALL relevant factors, only then would it be possible to make decisions about relocation....

" 'a specific issue order'

means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."

" 'a prohibited steps order'

means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;"

• Re B [2012] EWCA Civ 737,

paternal grandmother wanted to care for her 4 year old grandson who had been voluntarily placed in care when he was three years old. Grandmother's son was the father of the child, and 8 years older than the child's mother, couple began sexual relationship when mother only 13. Disputed facts over whether child's grandmother aware of under-age relationship although the couple were living in her home. When baby born couple moved out with child, grandmother alleged that she regularly looked after the baby overnight in her home. When couple split up grandmother wanted child to live with her but both parents withheld their consent. Concerns about her alcohol use, also her aggressive and violent behaviour. Local Authority also unhappy about placing child with her. Grandmother's application refused. On appeal it was argued that too much emphasis had been placed on the accusations about the grandmother and insufficient attention to the grandmother's human rights (Art 8)and also to the child's welfare particularly in respect of being placed with a member of the birth family with whom he had a relationship (limited contact). • The case confirmed that WP not Court's paramount consideration in the leave application because the leave application did not involve Questions relating to the child's upbringing. Nb. Does not mean WP totally irrelevant, but it is not the PARAMOUNT consideration.

Part II makes clear who can apply

s.10(2) The court may also make a section 8 order with respect to any child on the application of a person who— (a) is entitled to apply for a section 8 order with respect to the child; or (b) has obtained the leave of the court to make the application.

'Harm' - Children Act 1989 s.31(9)

• "harm" means ill-treatment or the impairment of health or development [F6including, for example, impairment suffered from seeing or hearing the ill-treatment of another]; • "development" means physical, intellectual, emotional, social or behavioural development; • "health" means physical or mental health; and • "ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

Common law analysis (before the Children Act 1989)

• 'When a court has before it a question as to the care and upbringing of a child it must treat the welfare of the child as the paramount consideration in determining the order to be made. There is here a principle which limits and governs the exercise of parental rights of custody, care and control. It is a principle perfectly consistent with the law's recognition of the parent as the natural guardian of the child; but it is also a warning that parental right must be exercised in accordance with the welfare principle and can be challenged, even overridden, if it be not.' Lord Scarman, Gillick v West Norfolk and Wisbech Health Authority [1986] 1 FLR 229....

Nb. S.11(7) - Court has powers to make directions or impose conditions (flexibility)

• 'living with', 'spending time with' and 'otherwise having contact with' are not defined in the statute.... • BUT, the point of the issue is to distinguish between orders that provide for child to spend significant period of time with (e.g.) named parents, vs orders for child to see a named person; • AND • orders with regard to 'in real time'/face-to-face contacts v indirect or non-physical contact.... • CAOs in respect of with whom a child is to 'live' are not limited to one or 'a' person (though it does have to be a person and not an institution). • Nor do those persons, if multiple, have to live together. i.e., both parents could have this type of CAO following separation.... • Also, not limited to parents, hence other parties may apply, (subject to leave being granted), e.g. grandparents, step-parents, siblings, etc).

S1 Welfare of the child

• (1) When a court determines any question with respect to— • (a) the upbringing of a child; or • (b) the administration of a child's property or the application of any income arising from it, • the child's welfare shall be the court's paramount consideration. • (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. • [(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.]....

S. 1(2A) 'presumption' to be read in conjunction with s.1(6) CA 1989

• ... for the purposes of this subsection, a parent of the child concerned - - (a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and - (b) is to be treated as being within para (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement. • "The purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child's best interests. It is not the purpose of this amendment to promote the equal division of a child's time between separated parents. • The effect of this amendment is to require the court, in making decisions on contested section 8 orders, the contested variation or discharge of such orders or the award or removal of parental responsibility, to presume that a child's welfare will be furthered by the involvement of each of the child's parents in his or her life, unless it can be shown that such involvement would not in fact further the child's welfare."

Re L (A child) [2001 ] Fam 260

• 4 co-joined cases concerning appeals against decisions refusing contact for fathers against a backdrop of domestic violence perpetrated by fathers against the childrens' mothers. All cases involved allegations of serious domestic abuse • Held: Family courts are required to have a heightened awareness of the effect on children of exposure to domestic violence between parents. In every case, courts should weigh up evidence to adjudicate whether the allegations of domestic violence were proved/not proved • No presumption that on proof that violence has occurred that contact between the offending parent and child will not occur. This would be just 1 factor in the balancing exercise of discretion. If that parent willing to acknowledge past behavior and be willing and committed to change, and making genuine efforts to do so, this should be considered. • Consider types of contact that could be ordered - supervised? Indirect? All options should be evaluated.... • The respective Art 8 ECHR rights of both parents and each child to be considered in any decision where contact may be refused... • Where conflict child's HR rights prevail, (Yousef v Netherlands [2003 ] 1 FLR 210, (more on this next time!)....

Multiple Orders: M v (1) F (2) A & (3) B (Children by their Guardian) [2016] EWFC 40...

• Applications for CAO, SIO and PSO: British M; F Egyptian Muslim, married in UK 2012, 2 children of marriage. Domestic abuse of M by F. Also, according to M, F admired Syrian freedom fighters and had exposed eldest child to violent material. M obtained a non-molestation order Nov 2013, and M left family home with eldest child whilst pregnant with second child. Baby born May 2014. F discovered family's whereabouts and breached non-mol. Police arrested F and found on him items which indicated that he may have planned to harm M and possibly abduct children. 3 year prison sentence and 1o year restraining order imposed. F denied claims and continued to try to contact M. M and children moved to secret location. M applied for CAO - children to live with her; no contact with F; PSO - preventing F from accessing children's health and education records; s91(4) order to stop father making any court applications until youngest child reached 18;SIO to change children's names. • Held: CAO in favour of M granted - F's breaches of non-mol serious evidence he posed serious risk to M and children. No contact because of risk of harm to children. PSO and SIO - effect would terminate F's PR, but access to information could lead to discovery of family's whereabouts. All orders made. • Court cannot use PSO or SIO to achieve same result as a CAO (s.9(5)); • LAs cannot apply for CAO (s.9(2)) - i.e. to ensure they use care proceedings under public law element of CA 1989, and not these private law proceedings instead...

A work in progress: Changes introduced by Children and Adoption Act 2006.....

• Changes mainly aimed at contact, and enforcement of contact orders - see high profile campaigns by 'Fathers 4 Justice' and 'Families Need Fathers' on alleged gender bias in the system (not proven in stats: 98% applications for contact granted in 2011, similar in most years). • Also 'Making Contact Work' Report. • Changes incorporated into Children Act 1989, especially ss11A -11P....

Types of arrangements.... • Child Arrangements Orders examples....

• Child to live with 1 parent and have weekend/school holiday direct contact with other parent, maybe + additional indirect contact (phone/facetime/skype/text/social media).... • Or Shared Residence - 50% living with one parent, remainder of time at other parent's home - great in theory, not easy in practice.... • Shared Residence - child stays in one home, parents swap around, live with child part of the time, move out and other parent move in....

Not just fathers ... Re S-B [2015] EWCA Civ 705

• Children aged 15 and 12, parents separated in 2008, and they had lived with mother until 2012when attended police station to complain she'd mistreated them. They'd lived with F, who'd remarried, since. • 2008-2012 number of s.8 order applications made. • Aug 2013: order made for children to live with F and indirect contact only with M, c/f their best interests. • CA: 7 yrs of unremitting litigation. CAO only allowing for M to have indirect contact was in their best interests. • Also, s.91(14) CA 1989 order made, no apps for 4 years.

: F v L (Permission to Relocate: Appeal) [2017] EWHC 1377 (Fam)...

• Courts may be asked to consider cases where one parent wants to relocate, thus resulting in changes/potential difficulties in the arrangements over the time spent with the non-resident parent.... • In F v L the parents were Italian Nationals living in the UK. Their child had been born in Italy in 2012, but moved here with Mother in 2013 and had a British passport. For part of the relationship Father had been the primary carer, whilst the Mother worked outside the home. M's family critical of this situation. Relationship broke down 2015, M left family home with the child, but the parents shared care until the court hearing. M lodged application to relocate to Italy, F cross-application for a s8 Child Arrangements Order. Both parents submissions heard by court, CAFCASS welfare report supported the relocation. M claimed Father emotionally abusive and controlling. • Court refused M permission to relocate, but made a CAO for shared care...M appealed... • The appeal was allowed, and 3 errors by the original judge were identified: 1) Approach to the two applications, relocation and for a CAO was wrong. Too much emphasis on relocation issue, but the CAO was an after-thought....2) Judge had failed to make any findings about the allegations the M had made about the F. If these were true, as 'controlling behaviours', they would be an offence under s77 Serious Crime Act 2015...; and 3) The judge had not given sufficient justification for ignoring the CAFCASS officer's report that had supported the mother's relocation.... • The first issue is the one of most interest to us, as the original judge's failure to to look at the child's care and welfare before looking at the relocation application was said to be incorrect, however, others have said that the appeal judge had also taken a wrong approach. Restored the Payne v Payne way of looking at the 'main carer'.... • F appealed.... • Held: In relocation cases the courts should use recent authorities (see below) to reach sound, welfare based conclusions on the same principled basis as other decisions concerning a child's upbringing. The court had to identify the available options and select the one that best met the child's welfare needs. The fact that the case involved a child possibly moving abroad did not merit a different approach. • ' Each realistic option for the welfare of the child should be validly considered on its own internal merits...That prevents 1 option (often in relocation cases the proposals from the absent or 'left behind' parent) from being sidelined...' Re F (International Relocation Cases) [2015 ] EWCA Civ 882 [para 30 ] ... • '...the only test that the court applies is is the paramount principle as to the welfare of the child...' Re C (Internal Relocation) [2015 ] EWCA Civ 1305 [para 82 ] .... • F's appeal succeeded, original order restored, M's request to relocate refused, and shared care CAO also restored.....

• (1) Before making a relevant family application, a person must attend a family Mediation Information Assessment Meeting (MIAM).

• Exemptions where, e.g., evidence of Domestic Violence, delays in provision of MIAM, etc. MIAM = meeting where information provided about— • (a) mediation of disputes, • (b) ways in which disputes of those kinds may be resolved otherwise than by the court, and • (c) the suitability of mediation, or of any such other way of resolving dispute.... • Cheaper than litigation, less adversarial....

Re Q (A child) [2015] EWCA Civ 991

• F alleged breach of Arts 6 and 8 when the judge had ended the proceedings without making a CAO re 8yr old child. This had followed years of litigation between the parents. Judge found child emotionally harmed by proceedings. Thus made SIO that parents cooperate in referral of child to therapy centre, but no further order re CAO for contact. • CA: 'impossible situation'. Judge had taken probably the only course that stood the slightest chance of a resumption of relationship between F and child. No breach. • 'I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser - and that, in overwhelming measure, is because of his mother's behaviour.... • I urge her again, as I urged her during the hearing, to reflect on Judge Brasse's findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. • Sooner or later, and probably sooner than she would hope, Q will discover the truth - the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.'

Alternative dispute resolution (ADR)...

• Family Justice System 'creaking' under the workload... • Court process, cumbersome, hard for litigants-in-person to negotiate/understand, expensive, stressful and not 'child-friendly'... • Mediation is one form of ADR, can be very successful for some parties/disputes, but not for everybody... • Family Arbitration already in place for financial disputes between parties (see S v S [2014] EWHC 7 (Fam) )... • Arbitration is binding, not a dummy run to ignore if result disliked - courts will consider it in deciding whether or not to make a Consent Order under s23 Matrimonial Causes Act 1973...

Case example: F and F [2013] EWHC 2683 (Fam)

• Father wanting daughters to have MMR vaccination.. • Mother & both girls opposed, L = 15yrs, M = 11 yrs • F now says he was 'reluctant participant' in joint decision not to inoculate when younger • Why applying now? Father increasingly concerned re their lack of protection, recent outbreak of measles in Wales sharpened his focus • Both opposed, L = vegan and concerned re animal content of vaccination, L also has 'anxiety issues', & receiving counselling. • L & M: charming, intelligent, articulate and thoughtful • BUT, lack of balance of information? • Concern re mother's overt anxiety on this issue? Outcome: in best interests of BOTH L & M to have the MMR vaccination, see para [22-23] - Children lacking maturity? - Naïve? - Lack of balance re wider picture - Influenced by mother's views - Emotional needs/outcome ~ parents making decisions for children to meet their welfare needs ~ 'what parenting is about' ~ consequences of the Ct's decision to be managed 'in a responsible way'. - The medical advice = have the vaccine, despite accepted risks of side effects

PM v CF [2018 ] EWHC 2658 (Fam)....

• Held: Welfare principle also applied to s91(14) applications... • Also where tension between article 8 rights of the parties, child's rights prevailed. Usually in child's interests to have contact, but effect of stress of children having any ongoing involvement with Father would negatively impact on Mother and likely to affect the children.... • Exceptional case - especially given the relocation under Protected Persons Scheme... • Father had no existing relationship with the children, even to have indirect contact posed serious risks to family • Balance fell decisively towards no contact (including indirect) - risk of Father finding out family's location would not facilitate welfare of the children... • Mother's applications all successful - Father's application for indirect contact dismissed....

Applying for leave: Adults - (s.10(9) CA 1989)...

• In deciding whether to grant leave, the court will consider.... • "(a) nature of the proposed application for the section 8 order; • (b) applicant's connection with the child; • (c) any risk there might be of the proposed application disrupting the child's life to such an extent that he would be harmed by it; and • (d) where the child is being looked after by a local authority— - (i) the authority's plans for the child's future;& - (ii) the wishes and feelings of the child's parents."

Real-life problems...

• In some cases, the parent with whom the child is living seeks to frustrate the relationship between the child and the non-resident parent... • Whilst the Court will make Child Arrangement Orders and stipulate the terms of contact that the non-resident parent is entitled to have with the child, if the resident parent is set on disrupting the contact there are limits on what the law/courts can achieve.... • Why? Because any sanction ordered against the resident parent has the potential to affect the welfare of the child.......

CP v AR & Anor [2009] EWCA Civ 358 para 124

• Judge made a s8 RO in favour of a nine year old boy's grandparents, the effect of which would be to move the child out of his mother's home where he had been since the Mother and Father had split up. The Mother appealed.... • Acrimonious divorce, numerous hearings over a six year period, both adults 'implacably hostile' to each other [para 17].... • Child Psychiatrist instructed to ascertain the effect that all of the hostility was having on the child, 'It is my very strong advice that if the parents do not act now to form a constructive and stable agreement about the future life arrangements for CR then they would both be knowingly causing him harm.'[para 24] • "the most important issue at present" as being "not whether (CR) should live with one or other of the parents but whether it is possible to enable both parents to release him from the battle". • It was alleged that 'CR has been neglected, hit, induced to say things that were wrong, witnessed parental intoxication, witnessed domestic violence and parental aggression towards others. He had been given ambiguous instruction with regard to religious culture and pushed to make allegiance with each parent against the other. He had had multiple caretakers, has moved home several times, changed schools and been subjected to sustained uncertainty. Between the two parents there would appear to be an overall clear description of emotional and physical abuse; possibly also of neglect.... I advise that serious consideration should be given to placing him at least for a trial period within independent foster care.' [para 28] • "fully shared residence has a high risk of ongoing disputes unless the child is largely in residential schooling with the shared residence being principally at holiday time". • Given the content of the psychiatrist's report, the Child Guardian suggested that the child live with his grandparents..... • During the hearing the Child Psychiatrist expressed concerns about the child living with his grandparents as he thought that the Father would use this situation to his advantage, and the Mother would be more hostile, this would further impact on the child. Nonetheless, the RO was made.... • On appeal the decision was reversed 'children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right. The judge's natural view that CR needed to be taken out of the arena has, in my judgment, led him to give that factor an undue weight, and has caused him to lose sight of the fact that he was removing CR not only from his mother's care but depriving him of family life with his half-brother. The absence of any discussion of both factors in the judgment is startling, and whilst the first might be explained by the undoubted harm suffered by CR whilst living in his mother's care, the latter is a serious omission which, in my view, vitiates the judgment'...' • 'I hope this case has given the mother a fright. I hope it has also given the father a fright. They have come within a whisker of losing their child. The order which this court seeks to impose gives then what may be a final opportunity to take the advice of Professor Zeitlin..., and to work together to improve their relationship for CR's benefit. I therefore propose to close this judgment with a message directed to them.... Separated parents, in my experience, frequently fail to understand that their children love both of them, and have loyalty to both. Such an attitude on the part of children is normally as it should be. The fact that one parent has come to hate the other, or that both hate each other is no reason for the child not to love both and have loyalty to both. It thus poses the most enormous difficulties for the children of separated parents when each parent vilifies the other, or makes it clear that he or she has no respect for the other...This mother and father are no different from many separated parents who make the damage to their children caused by their separation much worse by continuing their battles against each other in legal proceedings. They have already caused CR serious harm. Our judgments offer them, with, I hope, the help of Professor Zeitlin, an opportunity to mitigate that damage. If they do not so, they may well lose the care of their child.' [paras 122, 126 and 128]....

- Re G, Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) [2013] EWHC 134 (Fam)

• Leave granted for applications for (then) 'contact orders' where men had acted as donors for female civil partners - Neither man was recognised as the father 'in law', as children had two female parents (one mother, one 'parent') - But, the men had had some contact with children.

- Child Arrangements Order only:

• Local Authority - Foster parents, 'Residence Order' only, if child living there 1yr+ s.10(5A) • Relatives, 'Residence Order' only, if child living there 1yr+ (5B)

PM v CF [2018 ] EWHC 2658 (Fam)....

• Mother applied for orders under s91(14) Children Act 1989 - this provision applies where court disposes of an application for an order can attach to it requirement that no future application for an order under CA 1989 can be made by any person without the leave of the court • Mum's application in respect of her 2 children was for the Father's PR in respect of the eldest child be terminated (he was not on youngest child's birth certificate so no PR over that child). Mother also applied to change the surname of both children and to prevent the father ever being able to make court applications in respect of the children without the leave of the court. • Mother and Father's relationship marred by his abuse of her, culminating in a serious assault by him for which he was sent to prison for 42 months. M obtained indefinite restraining order which the Father breached by telephoning her from prison. Father was assessed as a high risk threat to Mother and the children posing a significant threat of serious injury or death. Mother and children placed in the UK Protected Persons Scheme and were relocated to a confidential address. Father admitted threatening to kill the mother on his release and that the surnames of children could be changed and he should lose his PR but he wanted to maintain indirect contact with the children by way of letters and information to him about the children.

L v C (Leave application by a non-biological mother) [2014] EWFC 1

• Ms L is English mid-40s; Ms C is Irish, mid-30s, child aged 10. • Ms C in Civil Partnership (with another woman) from 2010, not dissolved at time of case ... • Ms L and Ms C entered relationship in July 2012, • Jan 2013 Ms C found an 'internet sperm donor', she became pregnant and child born Oct 2013. Lived together in England for 2.5months, sharing care. • Ms L and Ms C's relationship ended Jan 2014. • Ms C returned to Ireland with child. No contact between Ms l and child since... Ms L sought • 1. permission to apply for a residence order and a contact order under the Children Act 1989. • 2. declarations that at the point of G's departure from England, Ms L was acting as child's 'psychological parent' and that they shared family life within the meaning of Article 8. Jackson, J: • 14. There is, however, no doubt that Ms L was as involved as she could have been in the couple's plans to have a child. The conception was a joint effort, with Ms L inseminating Ms C by syringe with the donor sperm. Plans for the child's arrival were jointly made. Ms L was present when G was born in England on 16 October and played a full and equal part in looking after her while she remained here. Ms C unfortunately suffered from some ill health after the birth, and Ms L was on hand throughout. She even took steps to enable herself to suckle and breastfeed G. Found: • 1. Court had no jurisdiction in relation to matters of parental responsibility concerning G (because child, G, was not habitually resident in England and Wales at time proceedings issued - see further semester 2). • 2. BUT, at the date of G's removal from England on 3 January 2014 family life within the meaning of Article 8 of the ECHR existed between G and Ms L. (In other words.....)

Why apply for a s8 Order?....

• Necessary to apply for a s8 Children Act 1989 order when there is a dispute between the Parental Responsibility holders/parents/ others... • A Child Arrangements Order will set out where and with which parent/PR holder/other the child is to live and how much contact they have with the other parent/PR holder.... • Order usually also deals with arrangements in school holidays, Christmas, birthdays etc... • The court is required to base their decision on finding the outcome that facilitates the child's welfare - s1 Children Act 1989....

SROs 'Shared Residence Orders'....

• Not anticipated to become 'common use'. Individual circumstances important, consider practicality - work/school etc.... • Courts reluctant to make such orders initially -

• S.1(2B) Children Act 1989 makes clear that 'involvement' does not mean 'any particular division of a child's time'.

• Only a presumption -no assumption that there will be a 50/50 split of time with child... • 'Involvement' can mean 'of some kind, either direct or indirect'.... • Direct - Face to face, spending time together... • Indirect - Facetime/Skype/letters/emails/birthday cards presents.... • Came into force on 22 October 2014

Problem - domestic abuse by one parent against the other, should the court make a CAO?

• PRACTICE DIRECTION 12J - CHILD ARRANGEMENTS & CONTACT ORDERs: DOMESTIC VIOLENCE AND HARM • 35: 'Safe' and 'in best interests of child'? • 36: In the light of any findings of fact the court should apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence or abuse have been made, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. • The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent. • i.e. if contact is about control or abuse (of previous partner) then it should not be permitted....

July 2016 - Children Arbitration Scheme launched - covers all private law Children Act disputes between parents (excl. international element cases, medical treatment cases/capacity cases, injunctive relief applications)...

• Under Scheme parties can refer themselves to arbitration or be referred by their solicitor... • Once Arbitrator appointed, he/she will communicate directly with parties and first 'hearing' will be set up to 'plan' the case - can be face to face/phone/paper... • All parties must 'agree' to the arbitration and to be bound by its outcome... • The 'Arbitration' will take place (solicitors' office/neutral venue) and a written Determination (decision/judgment) will be provided within 7 days or so... • Parties use decision and it is incorporated into a Consent Order which is sent to court to be approved and sealed. Failure by any party to comply, enforceable in usual way... • First case concerning an urgent dispute between parents over child arrangements, specific issues and parental responsibility issues took 10 days from referral to determination... • Waiting time for court hearing over 3 months....

The welfare principle - s1 Children Act 1989.... Check-list for the court (and us)....

• Used to help the court ascertain child's welfare.... • S1(3) Children Act 1989....(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to— • (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); • (b) his physical, emotional and educational needs; • (c) the likely effect on him of any change in his circumstances; • (d) his age, sex, background and any characteristics of his which the court considers relevant; • (e) any harm which he has suffered or is at risk of suffering; • (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question

If no automatic Parental Responsibility, how can Parental Responsibility be acquired?

• Where are the answers?: • By virtue of a Parental Responsibility Agreement - 4(1)(b) CA 1989...OR • Via a court order - Parental Responsibility Order - s4(1)(c) CA 1989.....OR • Via a Child Arrangements Order - s8 Children Act 1989 (not limited to fathers, any successful s8 Children Act 1989 Child Arrangements Order applicant acquires PR with the order) logical - need PR to carry out the responsibility of being a 'parent'... • (If child is removed from parents/others with PR, a s31 Children Act 1989, Care Order means that the Local Authority acquire Parental Responsibility as well....)

Who has Parental Responsibility?...

• Where to find the answers: • Main provision: S2 Children Act 1989 -Parental Responsibility for children.... • Married parents - s2(1) Children Act 1989.... • Second female parent if married or in civil partnership - s2(1)(A)(a) Children Act 1989 (see lecture slides weeks 2 and 3 re 'parent in law').... • Unmarried fathers: if registered as father on birth certificate - s4(1)(a) Children Act 1989....OR