the childrens act and guidence

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DEPARTMENT FOR CHILDREN, SCHOOLS AND FAMILIES
The Children Act 1989 Guidance and
Regulations
Volume 1
Court Orders
A FRAMEWORK FOR THE CARE AND UPBRINGING OF CHILDREN
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TABLE OF CONTENTS
PAGE
CHAPTER 1 – INTRODUCTION……………………………….. 5
Summary – Paras 1.1-1.7………………………………………… 5
Children and Their Families – Para 1.8………………………... 5
Child Centred Welfare Principles – Paras 1.9-1.15……..…… 6
Concurrent System of Jurisdiction – Paras 1.16-1.18………. 7
Appeals – Paras 1.19-1.21………………………………….......... 7
Role of Cafcass – Paras 1.22-1.26………………………………. 8
Arrangement of the Guidance – Paras 1.27-1.29……………… 9
CHAPTER 2 – PARENTAL RESPONSIBILITY AND
PRIVATE LAW ASPECTS OF THE ACT…………………….. 10
Summary – Paras 2.1-2.4………………………………………….. 10
Introduction – Para 2.5…………………………………………….. 10
The meaning of parental responsibility – Paras 2.6-2.7……… 11
Married and Unmarried parents – Paras 2.8-2.11……………… 11
Step parents – Paras 2.12-2.14……………………………........... 12
Delegation of the exercise of parental
responsibility – Para 2.15………………………………….………. 12
Responsibility of carers – Paras 2.16-2.17……………………… 13
Guardianship – Para 2.18………………………………………….. 13
Appointment of guardians – Paras 2.19-2.23…………………… 13
Revocation, disclaimer and termination –
Paras 2.24-2.26……………………………………………………….. 14
Section 8 Orders – Paras 2.27-2.38………………………………. 15
Residence Orders – Paras 2.29-2.34…………………………….. 16
Contact Orders – Paras 2.35-2.36………………………….......... 17
Prohibited Steps Orders – Para 2.37……………………………. 17
Specific Issue Orders – Paras 2.38-2.41……………………....... 18
The meaning of family proceedings – Paras 2.42-2.44……..… 18
Applications for Section 8 Orders – Paras 2.45-2.54…….…… 19
The position of local authority foster parents
Paras 2.55-2.56……………………………………………………… 21
The position of local authorities – Para 2.57………………….. 22
Older children – Para 2.58………………………………………… 22
Special Guardianship – Paras 2.59-2.66……………………….. 22
Family Assistance Orders – Paras 2.67-2.71……………..…… 24
Risk Assessment – Para 2.72…………………………………..... 25
The Court’s duty when considering whether to
make an order – Paras 2.73-2.75…………………………….….. 25
The relationship between private law orders
and public law proceedings – Paras 2.76-2.77………….……. 25
Financial provision for children – Paras 2.78-2.79……….….. 26
CHAPTER 3 – CARE AND SUPERVISION ORDERS… 28
Summary – Paras 3.1-3.5…………………………………………. 28
Care and Supervision Orders – Paras 3.6-3.11……………….. 29
Assessment Processes – Paras 3.12-3.18………………..…… 30
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Applications for Care and Supervision Orders
(Sections 31 and 32)…………………………………………………… 33
The order making powers of the court - -Paras 3.19-3.21………. 33
Matters to be considered by local authorities before
making an application for a care order or supervision
order – Paras 3.22-3.33……………………………………………….. 34
The making of the application – Para 3.34………………………… 36
Conditions for a care or supervision order – Paras 3.35-3.42…. 37
Initial Hearings: court requirements and party status -
Para 3.43…………………………………………………………………. 39
Interim Orders – Paras 3.44-3.47……………………………………. 39
Duration of Interim Orders – Para 3.48…………………………….. 40
Directions on examination and assessment when an
interim order is made – Paras 3.49-3.52…………………………… 40
Including an exclusion requirement – Paras 3.53-3.56…………. 41
Effects of, and responsibilities arising from, interim
orders – Para 3.57……………………………………………………… 42
Effect of care orders – Paras 3.58-3.64…………………………….. 42
Discharge of care orders and discharge and variation
of supervision orders – Paras 3.65-3.69……………………………. 43
Appeals against care and supervision orders – Para 3.7……….. 44
Contact with children in care – Paras 3.71-3.79…………………… 44
Supervision Orders – Paras 3.80-3.84………………………………. 46
Wardship and the inherent jurisdiction of the High Court
- Paras 3.85-3.88………………………………………………………… 48
CHAPTER 4 – PROTECTION OF CHILDREN…………………. 49
Summary – Paras 4.1-4.5…………………………………………….. 49
Introduction – Paras 4.6-4.9…………………………………………. 49
Child assessment orders section 43 – Paras 4.10-4.14………..... 50
Commencement and duration – Paras 4.15-4.23………………… 51
Practice issues – Para 4.24………………………………………….. 53
Emergency Protection Orders, sections 44, 44A, 44B
and 45 – Paras 4.25-4.32……………………………………………… 53
EPO on grounds that access to the child has been
frustrated – Paras 4.33-4.38………………………………………….. 55
EPO on general grounds – Paras 4.39-4.52……………………….. 56
Court Directions – Paras 4.53-4.56…………………………………. 59
Duration of EPOs – Paras 4.57-4.58………………………………… 60
Appeal and discharge of EPOs – Paras 4.59-4.63………………… 60
Police Powers – Paras 4.64-4.72……………………………………… 61
Local Authorities’ duty to make enquiries under
section 47 – Paras 4.73-4.82…………………………………………... 63
Abduction of children in care – Paras 4.83-4.84…………………. 64
Recovery orders – Paras 4.85-4.89…………………………………. 65
CHAPTER 5 – SECURE ACCOMMODATION ORDERS……… 67
Summary – Para 5.1……………………………………………………. 67
Introduction – Paras 5.2-5.3…………………………………………… 67
Criteria for the restriction of liberty – Paras 5.4-5.8………………. 68
Applications to the court – Para 5.9…………………………………. 69
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ANNEX A – Letter before proceedings…………………….…………….…. 71
ANNEX B – Practice Direction……………………………………………..…. 74
ANNEX C – Flowcharts Pre-Proceedings PLO/Court Proceedings
PLO………………………………………………………………….. 125
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CHAPTER 1 INTRODUCTION
Summary
1.1 This Chapter identifies the key principles underpinning the Children Act 1989,
in particular those relating to the paramountcy of children’s welfare as the court’s key
consideration in a range of family proceedings concerning the upbringing of children,
the desirability of avoiding delay and the expectation that a court will only make an
order where it is better for the child than for no order to be made.
1.2 The “welfare checklist” (section 1(3)) is set out, alongside the freedom of the
court to make a range of orders in Children Act proceedings, above and beyond the
specific order that might have been the subject of the application before it.
1.3 The range of courts able to hear cases is listed, as are the levels of court at
which appeals may be heard. The functions of Cafcass (the Children and Family
Court Advisory and Support Service) are also set out.
1.4 The Children Act 1989 (‘the Act’) provides a single coherent legislative
framework for the private and public law relating to children. It strikes a balance
between the rights of children, the responsibilities of both parents to the child and the
duty of the state to intervene when the child’s welfare requires it.
1.5 The courts have considerable scope for discretion in their decisions about
children. It is therefore important that practitioners in the field have a proper
understanding of the legislative framework and the way in which it is operated in
practice.
1.6 This guidance considers the orders available under Parts 1, 2, 4 and 5 of the
Act as well as secure accommodation orders (Part 3, section 25).
1.7 As with much else in the Act, court orders should not be seen as a freestanding
end product but must be considered within the context of a wide range of
provisions available under the Act to safeguard and promote the welfare of children,
before, after and outwith court proceedings. This guidance needs to be read in
conjunction with other guidance and Regulations in relation to the Act.
Children and their Families
1.8 The Act is based on the belief that children are generally best looked after
within the family with their parents playing a full part in their lives and with least
recourse to legal proceedings. That belief is reflected in:
(a) the concept of parental responsibility;
(b) the ability of unmarried fathers to share that responsibility by
agreement with the mother, by joint registration at birth or by court
order;
(c) the local authority’s duty to provide services which support children
and their families;
(d) the local authority’s duty to return a child looked after by them to his
family unless this is against his interests;
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(e) the local authority’s duty, unless it is not reasonably practicable or
consistent with his welfare, to endeavour to provide contact between a
looked after child and his parents and others.
Child-centred welfare principles
1.9 Section 1 sets out the overarching welfare principles to be applied in all
proceedings under the Act.
1.10 In deciding any question about a child’s upbringing and the administration of
his property, the court must treat the welfare of the child as its paramount
consideration. This applies as much to disputes between parents as it does to care
proceedings and emergency protection proceedings.
1.11 The Act makes it clear that any delay in court proceedings is generally
harmful to children, not only because of the uncertainty it creates for them but also
because of the harm it may cause to the future parenting of the child. Progress of a
case is controlled by the court (rather than by the parties) through active case
management, in accordance with court rules and guidance to the judiciary issued by
the President of the Family Division. Parties must ensure that they comply with any
directions made by the court to ensure the progression of cases and should expect to
be answerable to the court if its directions are not followed.
1.12 In contested section 8 proceedings, special guardianship applications and in
all care and supervision proceedings the court, when applying the welfare principle,
should have regard to the following checklist of factors which focuses not only on the
needs of the child but also on his views and the options available to the court:
(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, [censored], 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.
1.13 The Act makes clear that, whatever the order applied for in private law
(section 8) proceedings, the court may make any other private law order if it thinks it
is best for the child, or may trigger a local authority investigation (under section 37),
through which the authority will ascertain whether it should apply for one of the public
law orders available to protect the child. The full range of orders, including public law
orders, private law orders or no order, is also available to a court hearing a local
authority application for a care or other order in respect of the child. A court may
make a private law order in any other family proceedings (as defined by section 8(4))
plus the inherent jurisdiction of the High Court.
1.14 The Act prohibits the court from making an order unless it would be better for
the child than making no order at all. This prohibition applies even where the court,
in section 31 care and supervision proceedings, determines that the harm threshold
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condition is satisfied. In such cases, the court will consider whether or not an order is
necessary.
1.15 There are three aims underpinning this principle. The first is to discourage
unnecessary court orders from being made. The restriction of orders to those cases
where they are necessary to resolve a specific problem is intended to reduce conflict
and promote parental agreement and co-operation. The second aim is to ensure that
the order is granted only where it is likely positively to improve the child’s welfare and
not simply because the grounds for making the order are made out. For example, in
care proceedings the court may decide that it would be better for a particular child not
to be made the subject of a care order, which would place that child in local authority
care. The application by the court of this ‘no order’ principle should not deter local
authorities from bringing proceedings in those cases where they believe that a care
or supervision order is necessary in order to safeguard and promote a child’s welfare.
The third aim is to discourage the making of unnecessary applications.
Concurrent system of jurisdiction
1.16 The Act creates a concurrent system of jurisdiction for a wide range of family
proceedings in magistrates’ family proceedings courts, county courts and the High
Court. Rules and guidance governing the allocation and transfer of cases, either
vertically between the various tiers or horizontally within tiers, are intended to ensure
that cases are directed to the most appropriate court.
1.17 In practice, many public law cases will be heard entirely in the magistrates’
court (also known as the family proceedings court) as this will usually be the most
appropriate court and this is where most applications have to commence. In private
law cases, applicants may choose either the magistrates family proceedings court or
the county court. Both levels of court have powers to transfer cases to each other if
that is the most appropriate venue. The term ‘public law’ refers to cases concerning
children where the applicant is a public body, most typically a local authority. The
term ‘private law’ describes cases where issues about children have arisen as a
result of disagreements between family members (most commonly the parents)
about arrangements for their children.
1.18 An allocation order sets out the criteria on which decisions about transfers
between different levels of court should be based, which take into account the
overriding principle that delay is likely to prejudice the welfare of the child.
Appeals
1.19 There is a general right of appeal from a magistrates’ family proceedings
court to the High Court against both the making of and refusal to make any order.
The major exception is that there can be no appeal against the making of or refusal
to make an emergency protection order, though provisions exist for discharge
applications to be made. The Act contains three provisions in relation to appeals in
care proceedings, namely:
(a) appeals lie to the High Court (where the original proceedings were
heard in the magistrates’ court);
(b) appeals lie against the refusal as well as the making of a care or
supervision order;
(c) the local authority and any other party have full rights of appeal.
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An appeal against a decision of a district judge in a county court lies to a judge of the
county court. An appeal by a district judge of the High Court lies to a judge of the
High Court. An appeal against a decision of a judge of the County Court or a judge of
the High Court lies to the Court of Appeal.
1.20 The rules of court, which regulate the proceedings across all three tiers of
jurisdiction have been designed to promote, as far as is possible, a non-adversarial
style in court, within which issues are resolved as constructively as possible, in the
interests of the child. Following application, preliminary hearings and Issues
Resolutions Hearings may be held, at which directions are made by a judge or
magistrate. These are aimed at minimising delay and narrowing issues of difference
between parties, by identifying the key issues which require resolution in order to
determine the application.
1.21 To facilitate ease of transfer between different jurisdictional tiers and to
encourage the preparation of documentary evidence and advance disclosure,
applications for most public and private law orders are made by way of prescribed
forms. Applicants are required to give a considerable amount of information as to the
nature of their case, the order, and any accompanying directions, sought and, where
relevant, their future plans for the child.
Role of Cafcass
1.22 The function of the Children and Family Court Advisory and Support Service
(Cafcass) is, in respect of family proceedings where the welfare of children is or may
be in question, to:
• safeguard and promote the welfare of the children;
• give advice to any court about any application made to it in such proceedings;
• make provision for the children to be represented in such proceedings; and
• provide information, advice and other support for the children and their
families.
The Cafcass officer is under a statutory duty (section 41(2)) to safeguard the
interests of children in family proceedings and in doing so must have regard to the
‘no delay’ principle (section 1 (2)) and the matters listed in section 1(3). In private
law cases, Cafcass provides an early intervention service, working directly with
families to promote good and safe outcomes for children and to reduce conflict over
contact and residence arrangements. Where agreement cannot be reached through
such interventions a range of options is open to the court. Cafcass may be asked to
recommend a case plan for further work, or the court may order a report under
section 7 of the Act. Section 6 of the Children and Adoption Act 2006, also provides
for Cafcass practitioners to undertake and report to the court on risk assessments, in
particular in private law cases. The Court may request that a local authority provides
a section 7 report. This may arise in situations where local authorities are already
actively involved with such families, perhaps through the provision of services to a
child in need.
1.23 The Children and Adoption Act 2006 inserted a new section 16A into the Act,
which places a duty on Cafcass practitioners to carry out a risk assessment in
relation to a child in certain circumstances and to provide that risk assessment to the
court. The circumstances in which a risk assessment should be carried out are where
the officer is carrying out a function in connection with family proceedings in which
the court has the power to make an order under Part 2 of the Act, or in which a
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question with respect to such an order arises, or he is carrying out a function in
connection with an order made in such proceedings and he is given cause to suspect
that the child concerned in those proceedings is at risk of harm. A risk assessment is
defined as an assessment of the risk of the child suffering the harm that is suspected.
1.24 When the court orders a report, the Cafcass practitioner makes enquiries into
the circumstances of the family, interviews all parties (including the children and
parents) and writes a case analysis or report with a recommendation to the court on
the arrangements that would be in the child’s best interests. The court makes the
final decision based on all the evidence submitted, including the Cafcass analysis or
report and evidence from parents/family.
1.25 Where a child is involved in a particularly complex private law case,
they can be separately represented, usually by a Cafcass practitioner and
solicitor, under Rule 9.5 of the Family Proceedings Rules 1991. In such
cases, the child becomes a party to the proceedings.
1.26 In public law proceedings under the Act, Cafcass provides Children’s
Guardians to represent the interests of children and to appoint a solicitor for the child.
Arrangement of the guidance
1.27 The chapters in this guidance follow broadly the relevant parts of the Act.
Chapter 2 considers private law matters relating to children under Parts I and 2.
These focus on the child’s interests and the need to resolve specific areas of dispute.
The orders are designed to settle particular matters. They are made principally in
private family proceedings, though certain Part 2 orders, such as residence orders
and special guardianship orders, may also be made as a result of public law section
31 proceedings (described in Chapter 3). Separate guidance is available on special
guardianship orders, which are briefly described in Chapter 2.
1.28 Parts 4 and 5 of the Act establish the framework for compulsory intervention in
the care, supervision and protection of children. The basis for statutory intervention
is directed towards the occurrence of present or likely future harm to the child.
Chapter 3 deals with care and supervision orders. The law on the protection of
children is discussed in Chapter 4.
1.29 Chapter 5 provides the basic statutory framework in the Act governing the
restriction of liberty of children being looked after by local authorities and how this
protection is extended to children in other types of accommodation.
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CHAPTER TWO PARENTAL RESPONSIBILITY AND PRIVATE LAW
ASPECTS OF THE ACT
Summary
2.1 This Chapter opens by describing the concept of ‘parental responsibility’,
identifying who, beyond a child’s mother (who automatically has parental
responsibility), has it or may acquire it. An explanation is then provided of the
concept of guardianship for children, as well as the means by which it can be
revoked, disclaimed or terminated.
2.2 This Chapter then goes on to describe the range of orders that may be
applied for under section 8 of the Act: residence, contact, prohibited steps and
specific issues. Information is then provided about who may apply for such orders
and the meaning of the term ‘family proceedings’, within which section 8 orders may
be made.
2.3 Specific guidance is given about the position, as applicants for section 8
orders, of local authority foster parents and of local authorities themselves. An
explanation is also provided about special guardianship orders and how these may
be obtained. Family assistance orders are also described.
2.4 An explanation is provided about the relationship between private law orders
and public law proceedings, given the ability of the court to make private law orders
in a wider range of proceedings than section 8 proceedings alone. Finally, the
statutory code governing financial provision for children is explained.
Introduction
2.5 Part 2 of the Children Act 1989 makes provision for private law matters
relating to children. The term ‘private law’, as distinct from ‘public law’, signifies that
public bodies, in particular local authorities, are not normally a party to proceedings
under this part of the Act. Under Part 2 of the Act, the courts have the power to
make a range of orders in respect of children in ‘family proceedings’, as defined by
the Act. These orders are intended to underpin the resolution, in the interests of the
affected child, of specific areas of dispute, to promote safe and positive outcomes for
children and to encourage both parents to maintain their involvement in the child’s
life. They are made principally in private family proceedings, but some may also be
made in public law (care and supervision) proceedings under Part 4 of the Act and
also in adoption proceedings.
The meaning of parental responsibility
2.6 Parental responsibility is defined by section 3 of the Act as “all the rights,
duties, powers, responsibilities and authority which by law a parent of a child has in
relation to a child and his property” (Section 3(1)). Parental responsibility is
concerned with bringing the child up, caring for him and making decisions about him,
but does not affect the relationship of parent and child for other purposes. Thus,
whether or not a parent has parental responsibility for a child does not affect any
obligation towards the child, such as the statutory duty to maintain him (section
3(4)(a)).
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2.7 In reading any provision of the Act relating to a parent, therefore, it is
important to consider whether it applies to any parent or only to a parent with
parental responsibility. A mother always has parental responsibility (unless she has
subsequently lost it through adoption or through a parental order under the Human
Fertilisation and Embryology Act 1990), while an unmarried father only has parental
responsibility if he has acquired it through one or another of the means set out in
paragraph 2.4 below.
Married and unmarried parents
2.8 If the child’s father and mother were married to one another at the time of his
birth, they each have parental responsibility for the child (section 2(1)). The same
applies if they are or have been married to one another at any time since the child’s
conception (by virtue of section 1(2) and (4) of the Family Law Reform Act 1987). If
the child’s father and mother were not married to one another at the time of the
child’s birth and have not subsequently married one another, only the mother
automatically has parental responsibility (section 2(2)). An unmarried father may,
however, acquire parental responsibility in four different ways:
(a) by applying to the court for a parental responsibility order under
section 4(1). Where the court makes a residence order in favour of an
unmarried father who does not already have parental responsibility, it
must also make a parental responsibility order under section 4
(section 12(1)): in this way his parental responsibility will not
automatically come to an end should the residence order end.
(b) by making an agreement with the mother under section 4(1), in the
form and recorded in the manner prescribed by the relevant Secretary
of State in Regulations (section 4(2)) (Parental Responsibility
Agreement Regulations 1991 SI 1991/1478 and Parental
Responsibility Agreement (Amendment) Regulations 2005 SI
2005/2808): this is intended to convey to parents the importance and
legal effect of such an agreement, which is the same as an order
under section 4(1) and can only be brought to an end by a court order;
(c) by jointly registering, with the mother, the child’s birth (section 4(1)(a)
and 4(1A)). (Parental responsibility through joint registration applies
only to children born on or after 1 December 2003- joint registration
prior to this date did not confer parental responsibility on unmarried
fathers). Any of the above ways of acquiring parental responsibility
under section 4 places the unmarried father in the same position as a
married father, sharing parental responsibility with the mother, save
that, unlike a married father or mother, he can lose his parental
responsibility, should the court make an order to that effect; or
(d) by being appointed guardian, either by the mother or by a court, to
assume parental responsibility after the mother’s death.
2.9 If, following a child’s birth, the mother and father wish to share responsibility
for bringing up the child it will, in most circumstances, be in the child’s interests for an
unmarried father to acquire parental responsibility by registering the child’s birth with
the mother or by making a parental responsibility agreement.
2.10 Any of the means of acquiring parental responsibility under section 4(1) (by
agreement with the mother, by jointly registering the child’s birth or by court order)
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can only be brought to an end by a court order. Any person who has parental
responsibility for the child (which includes the father), or the child himself with leave
of the court (which may only be granted if the court is satisfied that the child has
sufficient understanding to make the application) (section 4(4)), may apply for the
parental responsibility, acquired under section 4(1), to be brought to an end (section
4(3)). Otherwise, parental responsibility acquired under section 4(1) will end
automatically when the child reaches the age of eighteen (section 91(7) and (8)).
2.11 An unmarried father who does not have parental responsibility is nevertheless
a ‘parent’ for the purposes of the Act. He therefore has the same right as any other
parent to apply to the courts for any type of order (section 10(4)) under Part 2 and is
entitled to reasonable contact with a child in care (under section 34(1)). He is not,
however, entitled to remove a child from accommodation provided under section 20,
he is not automatically a party to section 31 (care and supervision) proceedings, his
consent to placement for adoption or adoption of his child is not required, nor can he
appoint a guardian.
Step-parents
2.12 The Adoption and Children Act 2002 inserted a new section (4A) into the
Children Act 1989, which allows step-parents to acquire parental responsibility for
their step-children. Parental responsibility can be obtained under this section by a
person who is married to or the civil partner of a parent with parental responsibility for
the child, either with the consent of the parent (and the child’s other parent, if they
have parental responsibility for the child) (section 4A(1)(a)), or by court order (section
4A(1)(b)). An agreement under section 4A(1)(a) is also a “parental responsibility
agreement”. Section 4A was inserted to allow step-parents to acquire parental
responsibility for their step-children without having to go through the adoption
process and therefore without depriving the child’s other parent of their status.
2.13 Parental responsibility acquired under section 4A can only be brought to an
end by a court order on the application of anyone with parental responsibility for the
child or, with the court’s leave, on the application of the child himself, (section 4A(3)).
Leave to apply should only be granted to the child if the court is satisfied that the
child has sufficient understanding to make the application (section 4A(4)).
2.14 A parental responsibility agreement under section 4A must also be in the form
prescribed in the Parental Responsibility Agreement Regulations 1991/1478 (as
amended by SI 2005/2808).
Delegation of the exercise of parental responsibility
2.15 Informal arrangements for the delegation of parental responsibility are
covered by section 2(9), which provides that a person with parental responsibility
cannot surrender or transfer any part of that responsibility to another, but may
arrange for some or all of it to be met by one or more persons acting on his behalf.
The person to whom responsibility is delegated may already have parental
responsibility for the child, for example if he is the other parent (section 2(10)). Such
an arrangement will not, however, affect any liability of a person with parental
responsibility for the child for failure to meet that responsibility (section 2(11)). Thus,
the Act recognises the right of parents to delegate responsibility for their child on a
temporary basis, for example to a babysitter or for specific purposes such as a
school trip, but it will still be the parent’s duty to ensure that the arrangements made
for temporary care of the child are satisfactory. Otherwise, the parent may be guilty
of an offence relating to the neglect or abuse of a child.
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Responsibility of carers
2.16 The position of the temporary carer is clarified by section 3(5), which provides
that a person who has care of the child but does not have parental responsibility may
do “what is reasonable in all the circumstances of the case for the purpose of
safeguarding or promoting the child’s welfare” (section 3(5)). This covers actions
taken by people looking after a child who is being accommodated by a local authority
under section 20, provided that these are reasonable in the circumstances. What is
reasonable will depend upon the urgency and gravity of what is required and the
extent to which it is practicable to consult a person with parental responsibility.
2.17 The remaining provisions relating to the sharing of parental responsibility are
dealt with below.
Guardianship
2.18 The object of Guardianship under the Act is to ensure that an appropriate
person can exercise parental responsibility for a child whose parents have died.
Guardians will, of course, generally not be parents of the child. A guardian must be
an ‘individual’, which term does not include a local authority, voluntary organisation or
trust corporation. Once the appointment takes effect, the guardian will have the
same parental responsibility as a birth parent (section 5(6)). It is not possible to
appoint a guardian who is responsible for the child’s property but not for bringing him
up (save that Rule 21.13 of the Civil Procedure Rules 1998 (SI 1998/3132) allows the
Court to appoint the Official Solicitor to act as guardian of the child’s estate in certain
specific cases, for example in handling criminal injuries compensation or other
compensation awarded by the court to a child, though such an appointment must be
with the agreement of all persons with parental responsibility for the child, unless the
court considers that their consent can be dispensed with). A guardian may be
appointed by any parent with parental responsibility, or by any guardian (including a
special guardian, or by a court. However, it is important to note that a private
appointment only takes effect, and a court appointment can only be made, if the child
has no parent with parental responsibility for him, the parent, guardian or special
guardian who had a residence order in his or her favour dies (though a private
appointment only takes effect if there is also no parent with parental responsibility), or
there is no surviving special guardian (see 2.22 below).
Appointment of Guardians
2.19. The appointment of a “guardian” for a child under these provisions should not
be confused with the appointment of a Cafcass Children’s Guardian in public law
proceedings (see chapter 3). A court can appoint a guardian either on application or
of its own motion in any family proceedings (section 5(1) and (2)). The appointment
of a guardian might therefore be made instead of, or even in addition to, a care order
in care proceedings. However, the court only has power to appoint a guardian in
three situations:
(a) where the child has no parent with parental responsibility for him,
either because both parents have died, or because his mother has
died and his father does not have parental responsibility; or
(b) where there was a residence order in force in favour of a parent,
guardian or special guardian who has died, and there is no surviving
14
parent who also has a residence order (section 5(9)); this is to cater
for a child whose parents or special guardians are separated when the
parent with whom he is living dies and there is a court order providing
that the child is to live with one particular parent or guardian; or
c) where paragraph (b) above does not apply (i.e. there was no
residence order in force) and the child’s only or last surviving special
guardian dies.
2.20. If any of the above situations arises in relation to a child who is the subject of
a care order, the local authority may wish to consider whether it would be in the
child’s interests for someone, perhaps a member of the family, to be appointed to
take the place of the parent who has died. That person would share parental
responsibility with the authority, subject to the care order, and would be entitled to
reasonable contact with the child under section 34(1), to apply for the care order to
be discharged under section 39(1), and to withhold agreement to the child’s adoption
unless this could be dispensed with on any of the usual grounds. For some children
this could be a valuable way of demonstrating the continued commitment and
concern of their extended family, even if for the time being they are to remain in local
authority care.
2.21 For a child who is accommodated under section 20 when any of the situations
set out in paragraph 2.15 arises, it may be even more beneficial for a guardian to be
appointed, particularly if the threshold criteria for making a care order do not exist.
Even if they do, the authority may wish to consider whether the appointment of a
guardian would serve the child’s interests better than making a care order.
2.22 Guardians may also be appointed by any parent with parental responsibility
(section 5(3)) and by guardians themselves or by special guardians (section 5(4)).
These appointments only take effect in the situations where a court has power to
make an appointment; ie when there is no surviving parent with parental
responsibility or when the person making the appointment had a residence order in
his favour immediately before his death or he was the child’s only or last surviving
special guardian (section 5(7)) unless the residence order was made in favour of a
surviving parent as well (section 5(9)).
2.23 The formalities for the private appointment of a guardian (or guardians) do not
require that the appointment be made only by deed or by will. Instead, an
appointment will be valid provided it is in writing and is dated and signed by the
person making the appointment. Alternatively, the person making the appointment
may direct another person to sign on his behalf, provided this is done in his presence
and in the presence of two witnesses who each attest the signature (section 5(5)). A
person appointed as a guardian under section 5 has parental responsibility for the
child (section 5(6)) but the appointment only takes effect once the person making the
appointment has died.
Revocation, disclaimer and termination
2.24 Section 6 governs the revocation, disclaimer and termination of guardianship.
The basic principle is that any later private appointment revokes an earlier one made
by the same person in respect of the same child, unless it is clear that the purpose
was to appoint an additional rather than a substitute guardian (section 6(1)). Any
appointment made in a will or codicil is revoked if the will itself is revoked in
accordance with the special rules relating to the revocation of wills (section 6(4)), but
all appointments, however made, can also be revoked in the same simple way that
15
an appointment can be made (section 6(2): see paragraph 2.18 above), and an
appointment made in a document other than a will or codicil can be revoked by
destroying the document with the intention of revoking the appointment (section
6(3)). An appointment is also revoked if the person appointed is the spouse or civil
partner of the person making the appointment and the marriage or civil partnership is
subsequently dissolved or annulled (section 6(3A) and (3B)).
2.25 There is also a right for a privately appointed guardian formally to disclaim his
appointment by written instrument, signed by him and made within a reasonable time
of his first knowing that the appointment has taken effect (section 6(5)).
2.26 Guardianship comes to an end automatically when the child reaches the age
of eighteen (section 91(7) and (8)), whether the appointment was made by the court
or privately. Any appointment may also be brought to an end by order of the court on
the application of:
(a) any person, including a local authority, who has parental responsibility
for the child;
(b) with leave, the child himself; or
(c) of the court’s own motion in any family proceedings (section 6(7)).
Section 8 orders
2.27 Section 8 provides for the following orders: contact orders, prohibited steps
orders, residence orders and specific issue orders. These are defined in section 8(1)
as follows:
‘a contact order’ means an order requiring the person with whom a child lives,
or is to live, to allow the child to visit or stay with the person named in the
order, or for that person and the child to have contact with each other;
‘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;
‘a residence order’ means an order settling the arrangements to be made as
to the person with whom a child is to live; and
‘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.
Any of these orders, or any order varying or discharging such an order, is
referred to in the Act as ‘a section 8 order’. The court is able to make a
section 8 order either upon application or of its own motion (section 10(1)(a)
and (b)), unlike care and supervision orders which may not be made of the
court’s own motion, except on an interim basis (section 38(1)(b)). The court
also has power, when making any section 8 order, to include directions about
how it is to be carried into effect, to impose conditions to be complied with (i)
by any person in whose favour the order is made or (ii) a parent or (iii) a nonparent
with parental responsibility or (iv) a person with whom the child is
living, to specify the period over which the order, or any provision contained in
it, will have effect, and to make such incidental, supplemental or
consequential provision as the court thinks fit.
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2.28 Under section 91(10), subject to any specific provisions in the order to the
contrary made under section 9(6) or section 12(5) a section 8 order ceases to have
effect when the child reaches the age of sixteen. Section 91(11) provides that where
a section 8 order is to have effect beyond the age of sixteen, it ceases to have effect
when the child reaches the age of eighteen. A section 8 order cannot continue past
the child’s eighteenth birthday. See 2.51 for further guidance on the extension of
orders beyond a child’s sixteenth birthday.
Residence orders
2.29 A residence order is flexible and able to accommodate a variety of shared
care arrangements. The intention is that both parents should feel that they have a
continuing role to play in relation to their children, on a defined basis if necessary.
2.30 Section 2(5) provides that more than one person may have parental
responsibility for a child at the same time and by section 2(6) a person with parental
responsibility for a child does not lose it just because some other person
subsequently acquires it. Thus, the making of a residence order in favour of one
parent does not take away parental responsibility from the other. Nor do the parent
or parents of a child lose parental responsibility when a third party who is neither
parent nor guardian of the child acquires parental responsibility, through the making
of a residence order or a special guardianship order in his or her favour (section
12(2)). The making of a care order has the effect of discharging any pre-existing
section 8 order (including a residence order) in force in respect of that child (section
91(2). The making of a residence order in respect of a child who is the subject of a
care order discharges the care order (section 91(1)).
2.31 Section 2(7) provides that, where parental responsibility is shared, each
person with parental responsibility may act independently of the other in meeting that
responsibility. Thus, although the making of a residence order in favour of one
parent may curb the other parent’s ability to act independently, to the extent that in
practice the day to day care of the child is largely controlled by the parent with whom
the child lives, when the child is with the non-resident parent he or she may meet his
or her parental responsibility to the full, without the need for consultation with the
other parent. The only restrictions on this are that neither parent may act
independently in matters where the consent of more than one person is expressly
required by statute (section 2(7)), for example under section 1 of the Child Abduction
Act 1984 in relation to removal of the child from the United Kingdom or under section
19 of the Adoption and Children Act 2002 in relation to agreement to placement for
adoption; nor may either parent act in any way that is incompatible with any order
made in respect of the child (section 2(8)). Thus, for example, one parent may not
remove the child from the physical care of the parent (or indeed any other person)
with whom the child is to live by virtue of a residence order but could take the same
interest as any other parent in his child’s education. The same would apply in the
case of a non-parent with whom the child is to live by virtue of a special guardianship
order.
2.32 By section 12(2) the making of a residence order in favour of a person who is
neither parent nor guardian of a child has the effect of conferring parental
responsibility on him or her while the residence order remains in force. However, he
or she, like a local authority with a care order in its favour (see section 33(6)), does
not acquire the right to consent or refuse consent to the placement of a child for
adoption or to the making of a placement order, the making of an adoption order or
17
the right to appoint a guardian. By section 12(1), where a residence order is made in
favour of an unmarried father the court must also make an order under section 4
giving him parental responsibility. Under section 12(4), this must not be brought to
an end while the residence order remains in force. Indeed, if the residence order is
subsequently discharged the order giving him parental responsibility will continue
unless it is specifically revoked. In such cases it will usually be in the child’s interests
for his father to retain parental responsibility for him.
2.33 Another effect of a residence order is that no person may cause the child to
be known by a new surname nor remove him from the United Kingdom without either
the written consent of every person who has parental responsibility for him or the
leave of the court (section 13(1)). This does not, however, prevent the person in
whose favour the residence order has been made from removing the child for a
period of less than one month (section 13(2)). There is no limit on the number of
these short trips and if the non-resident parent feels that the child is being taken out
of the United Kingdom too frequently or that there is a danger of abduction he or she
should seek a prohibited steps order.
2.34 A residence order may be made in favour of more than one person at the
same time even though they do not live together, in which case the order may specify
the periods during which the child is to live in the different households concerned
(section 11(4)). A shared residence order may be appropriate in those cases where
the child is to spend considerable amounts of time with both parents.
Contact orders
2.35 A contact order usually provides for the child to visit or stay with the person
named in the order, though a contact order may take the form of an order of no
contact with a named person (or persons). The order may provide for the child to
have contact with any person, not just a parent, and more than one contact order
may be made in respect of a child or the court may order that there be no contact
between the child and a particular person. ‘Contact’ includes both direct face-to-face
contact, such as long and short visits and stays, as well as indirect contact by letter,
e-mail, telephone or other means. A contact order may provide for no contact, for
reasonable contact, or it may specify the details and nature of contact. Contact
orders, which require the parent with whom the child lives to allow contact with his
other parent will, like residence orders, lapse if the parents subsequently live together
for a period of more than six months (section 11(5) and (6)) and are discharged if a
care order is made in respect of the child (section 91(2) and see below) or if the child
is authorised to be placed for adoption (also see 2.39).
2.36 Section 8 contact orders (as well as prohibited steps orders and specific
issues orders) cannot be made if the child is the subject of a care order (section
9(1)), because in this case the local authority has a statutory duty (under section 34
of the Act) to allow the child reasonable contact with his parents (whether or not they
both have parental responsibility), any guardian or special guardian, anyone who has
parental responsibility under section 4A and any other person with whom the child
was living by virtue of a residence order immediately before the care order was
made.
Prohibited steps orders
2.37. Both prohibited steps orders and specific issues orders are concerned with
‘single issues’. The purpose of the prohibited steps order is to impose a specific
restriction on the exercise of parental responsibility. It could, for example, be used to
18
prohibit a child’s removal from the country where no residence order has been made
and therefore no automatic restriction on removal applies. Another example could be
to prevent the child’s removal from his school before the court has had time to decide
what specific issue order, if any, should be made. A prohibited steps order may be
made against anyone but can only prohibit “a step which could be taken by a parent
in meeting his parental responsibility” for the child.
Specific Issue Orders
2.38. A specific issue order may be made in conjunction with a residence order, a
contact order, a prohibited steps order or on its own. Its aim is to enable a particular
dispute over the exercise of parental responsibility to be resolved by the court. This
may necessitate the making of detailed directions where necessary.
2.39 The wardship jurisdiction remains to fill any gaps in the statutory provision, as
it has been held that the court in the exercise of its wardship jurisdiction is not limited
to the powers that a parent has to act on a child’s behalf. For example, the court in
the exercise of its inherent jurisdiction over minors will have the authority to override
the wishes of a child with sufficient age and understanding to make an informed
decision who refuses to undergo medical treatment (see Re W (a minor)(medical
treatment) [1992] 4 All ER 627).
2.40. Similarly, a prohibited steps or specific issue order may not be made “with a
view to achieving a result which could be achieved by making a residence or contact
order” (section 9 (5)(a)). This is to avoid either of these orders being used to achieve
much the same practical results as residence and contact orders but without the
same legal effects.
2.41 Local authority use of wardship is severely restricted by section 100, which
provides that the jurisdiction cannot be used for the purpose of placing a child in
care, or in local authority accommodation, or under the supervision of a local
authority (section 100(2) and paragraph 3.98 below). The making of a care order in
respect of a child who is a ward of court brings that wardship to an end. However,
local authorities will, in circumstances where a care order is not in force, be able to
apply for specific issue and prohibited steps orders, provided that they first obtain the
court’s leave (see below). For example, this may arise where a child is
accommodated voluntarily by the authority and the child is felt to be in need of a
particular course of medical treatment urgently and the parents cannot be contacted.
If, in all the circumstances of the case, the decision is likely to cause controversy at
some future date, the local authority should seek a section 8 specific issue order.
The meaning of family proceedings
2.42. The court may make a section 8 order with respect to a child in any family
proceedings in which a question arises with respect to the welfare of that child
(section 10(1)). ‘Family proceedings’ are defined by section 8(3) as any proceedings:
(a) under the inherent jurisdiction of the High Court in relation to children;
and
(b) under the enactments mentioned in section 8(4)
but do not include proceedings in relation to applications for leave under section
100(3).
19
The enactments listed in section 8(4) are: Parts 1, 2 and 4 of the Act, the Matrimonial
Causes Act 1973, Schedule 5 to the Civil Partnership Act 2004, the Adoption and
Children Act 2002, the Domestic Proceedings and Magistrates’ Courts Act 1978,
Schedule 6 to the Civil Partnership Act 2004, Part 3 of the Matrimonial and Family
Proceedings Act 1984, the Family Law Act 1996 and sections 11 and 12 of the Crime
and Disorder Act 1998.
2.43 Section 8 orders may therefore be made in most proceedings specifically
relating to the care and upbringing of children. These comprise wardship
proceedings and proceedings under the Act itself, including applications for care and
supervision orders and adoption proceedings (although see below). Section 8 orders
may not be made in emergency protection and child assessment proceedings under
Part 5 of the Act or in secure accommodation proceedings under section 25 (Part 3).
Orders may also be made in certain proceedings which are primarily concerned with
disputes between adults but in which the interests of the children may be very
important. These include divorce, dissolution of civil partnerships, nullity and judicial
separation proceedings, maintenance proceedings, occupation and non-molestation
order proceedings and applications for child safety orders.
2.44 Section 8 orders may also be made in proceedings under the Adoption and
Children Act 2002, but under section 26 of that Act, where an adoption agency is
authorised to place a child for adoption (i.e. by consent under section 19 or by a
placement order under section 21), or a child who is less than six weeks old is placed
for adoption, any provision for contact under the 1989 Act ceases to have effect.
While the adoption agency is authorised to place for adoption or the child is placed,
no application under section 8 may be made, although the court may order that
contact take place either on an application under section 26 from the persons listed
in section 26(3) or of its own motion. An application for a section 8 contact order may
nevertheless also be made if it is to be heard together with an adoption order
application (section 26(5)). (Annex A to the Adoption and Children Act 2002
Guidance provides information on placement orders, their effect, contact
arrangements and the interaction with orders under the Children Act 1989: see
paragraphs 36 to 62. That Guidance is available at:
http://www.everychildmatters.gov.uk/resources-and-practice/search/IG00032/
Applications for Section 8 Orders
2.45. Section 8 orders may be made on application or of the court’s own motion
under section 10(1) in the course of family proceedings or, in the absence of any
other proceedings, on a freestanding application under section 10(2). Section 10
also sets out the three basic categories of applicants for section 8 orders. Where the
court makes a section 8 order of its own motion within family proceedings, it can
even make an order in favour of someone who would be ineligible to apply for such
an order. However, this is likely only to be done in the most exceptional
circumstances and with cogent reasons justifying it in the interests of the child. The
intention underpinning this limitation is to respect the privacy of a child’s family life,
while at the same time for those who have a ‘family life’ with a child to bring issues
about a child’s upbringing before the court.
2.46 In the first category are people who may apply as of right for any section 8
order. These are
! parents (including unmarried fathers);
! guardians;
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! special guardians;
! step-parents with parental responsibility under section 4A; and
! any person in whose favour a residence order is in force with respect to the
child (section 10(4)).
2.47. In the second category are people who may, in addition to those set out
above, apply as of right for a residence or contact order. These are
! any party to a marriage or civil partnership (whether or not subsisting) in
relation to which the child is a child of the family;
! any person with whom the child has lived for a period of at least three years
(which need not be continuous); and
! any person who;
(i) where a residence order is in force with respect to the child, has the
consent of each of the persons in whose favour the order was made;
(ii) where the child is in the care of a local authority, has the consent of that
local authority; or
(iii) in any other case, has the consent of each of those (if any) who have
parental responsibility for the child (section 10(5)).
2.48. The first group in this second category consists primarily of step-parents, who
have not acquired parental responsibility under section 4A. Those who have parental
responsibility can apply for any section 8 order under section 10(4)(aa). The term
‘child of the family’ is defined at section 105(1) as being “in relation to parties to a
marriage, or to two people who are civil partners of each other (a) a child of both of
them, and (b) any other child, other than a child placed with them as foster parents
by a local authority or voluntary organisation, who has been treated by both of them
as a child of their family” (section 105(1)). Children formerly privately fostered may
therefore be included.
2.49. Other people who do not have the consent of all the requisite people with
parental responsibility and are not local authority foster parents (see below) must
have had the child living with them for a total of three years. The period of three
years need not be continuous but must not have begun more than five years before,
or ended more than three months before, the making of the application (section
10(10)). The three months will give them time to make an application if the child is
removed against their wishes. Where a special guardianship order is in force, the
leave of the court is required for any application for a residence order (section 10(7))
if the person wishing to apply for the order is not otherwise entitled to apply without
leave (section 10(7A)).
2.50 Additionally, as a third category, foster parents may apply as of right for a
residence order if the child has been living with them for 12 months or more
immediately preceding the application (section 10(5A).
2.51 Section 10(6) provides that any person who does not otherwise fall into any of
the above categories is nevertheless entitled to apply for the variation or discharge of
a section 8 order if either the order was made on his application or, in the case of a
contact order, he is named in the order.
2.52. The fourth category covers anyone else with the leave of the court, who may
apply for any section 8 order (although in the case of local authorities and their foster
parents there are certain restrictions, which are dealt with below). This enables
anyone who considers that they have a genuine interest in the child’s welfare to seek
the leave of the court to apply for a section 8 order. The child himself can apply for
leave, which may be granted if the court is satisfied that he has sufficient
21
understanding to make the proposed application (section 10(8)). Where the
applicant is not the child concerned, the court must have particular regard to a
number of factors in deciding whether to grant leave (section 10(9)). These are: the
nature of the proposed application, the applicant’s connection with the child, any risk
of the proposed application disrupting the child’s life to such an extent that he would
be harmed by it and, where the child is being looked after by a local authority, the
authority’s plans for the child’s future and the wishes and feelings of the child’s
parents (section 10(9)). In general, leave is likely to be granted if it is in the child’s
best interests to do so and the court will also need to consider the Article 6 (right of
access to a fair trial) and Article 8 (right to respect for private and family life) rights of
the applicants and give due weight to the considerations in section 10(9) (see Re:J (a
child) (leave to issue application for residence order) [2002] EWCA Civ 1346).
2.53 There are restrictions on applications for certain section 8 orders under the
Adoption and Children Act 2002, where the child has been placed for adoption or an
adoption agency is authorised to place a child for adoption under section 19 (ie with
the consent of the child’s parents or guardians). In these circumstances, a parent or
guardian of the child cannot apply for a residence order and a guardian cannot apply
for a special guardianship order, unless an application for an adoption order has
been made and the parent or guardian has the leave of the court under section 47 to
oppose the making of the adoption order (section 28 Adoption and Children Act
2002).
2.54 Where a placement order has been made in respect of a child, this order has
the effect of ending any section 8 order (or supervision order) in force in respect of
that child (section 29(2) Adoption and Children Act 2002). Where a placement order
is in force, the court cannot make a residence order, a contact order (under section
8), prohibited steps order or specific issue order. The only exception to this is in
relation to residence or special guardianship orders where an application for an
adoption order has been made and the person applying for the order has the leave of
the court under either section 47 or section 29, as appropriate. (See also Annex A to
the Adoption and Children Act 2002 Guidance, paragraphs 36 to 62. That Guidance
is available at: http://www.everychildmatters.gov.uk/resources-andpractice/
search/IG00032/
The position of local authority foster parents
2.55 Section 9(3) means that a local authority foster parent can only apply for
leave to apply for a section 8 order if they fall into one of the following categories:
! They have the consent of the local authority; or
! They are a relative of the child.
Where the child has lived with the local authority foster parent for at least one year
preceding the application, leave is not required (section 10(5A)).
2.56 This restriction is intended to prevent applications by foster parents at a stage
when the local authority is still in the process of assessing what is best for the child in
the long term. The restriction is also intended to prevent parents from being deterred
from asking for their child to be accommodated on a voluntary basis with a local
authority foster parent.
22
The position of local authorities
2.57 The Act draws a clear distinction between children who are provided with
accommodation or other family support services by a local authority and children
formally in the care of a local authority (although both are looked after). Parental
responsibility for a child will only be acquired by a local authority by means of a care
order, which will only be granted if the criteria set out in section 31 are met. For this
reason, a local authority may not in any circumstances apply for or be granted a
residence or contact order (section 9(2)). Furthermore, once a care order has been
made in respect of a child, the court’s private law powers should not be used to
interfere with th