Our Family & Children Law Solicitors can assist you with issues related to Court Orders for children. There are several Court Orders that can be made, which are outlined below.
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The most frequently made Courts Orders to resolve disputes between parents about their children’s upbringing are:
These are often referred to as Section 8 Orders because they are referred to in Section 8 of the Children Act 1989. Most parents are entitled as of right to apply for a Section 8 Order relating to their children. Other family members and significant people in a child’s life might also be able to apply for a Section 8 Order as of right.
Those who cannot must ask for permission from the Court to make the application. A child can theoretically apply for a Section 8 Order relating to himself or herself, but this also needs the Court’s permission, and it is exceptional for it to be given.
Section 8 Orders, once made, usually last until the child concerned turns sixteen. In exceptional circumstances, they can last until the child turns eighteen.
There are sometimes genuine emergencies that require Courts to consider Section 8 Orders urgently. In the most urgent cases, a Section 8 Order might be sought with the Judge hearing from only one parent, without the other parent even knowing the case is in Court. The circumstances where this is appropriate are rare. Any orders made will be limited in scope and duration to the extent necessary to protect the child. The Court will set an early date to consider the matter again, and to give the other parent an opportunity to explain his or her case.
Depending on the issues involved, an application for a Section 8 Order will usually be dealt with either in the Family Proceedings Court (FPC) or in the County Court. Particularly complex or difficult cases can be transferred to the High Court.
Section 8 proceedings are usually strictly confidential. In most Section 8 applications, it is not permitted to disclose any documents or papers, or information from them or the case. To do so might constitute contempt of Court, and ignoring this restriction is viewed very seriously. There have been cases of parents being sent to jail for ignoring the confidentiality that applies.
When considering whether to make a Section 8 Order, the Court’s first and overriding obligation is to the welfare of the child. The Court is charged with making the decision that best promotes that particular child’s interests.
The Court is required to have regard to a number of matters, known as the Welfare Checklist, to help it decide upon the child’s best interests. These are:
A Prohibited Steps Order is a type of Section 8 Order. It is an Order that forbids someone from using Parental Responsibility in a particular way. Prohibited Steps Orders can cover as many matters as there are aspects to Parental Responsibility. Some of the more common examples of PSOs include forbidding a parent to:
Prohibited Steps Orders can be made even if there are no other Section 8 Orders made: so, there does not need to be a Residence Order or Contact Order in place before a Court will make a Prohibited Steps Order.
Whilst Prohibited Steps Order (PSOs) are designed to prevent a step being taken that is of the nature of Parental Responsibility, PSOs may be made against any person; that is, they are not only available against a child’s parents. So, a PSO could be made against a family member or friend whom it was feared might make a decision of a type usually taken by someone with Parental Responsibility.
Where appropriate, PSOs can be used to preserve the status quo until longer-term decisions are taken. Of all the Section 8 Orders, PSOs are most likely to be made to address truly urgent situations, where a child’s welfare is at risk. This is sometimes done by a Judge hearing from only one parent, without the other parent even knowing the case is in Court.
A Specific Issue Order is a type of Section 8 Order. Specific Issue Orders are made where a dispute arises about a question of Parental Responsibility. This disagreement facing a Court dealing with a Specific Issue Order (SIO) is usually narrow and well-defined.
Examples of matters that might be the basis of a SIO include:
A Specific Issue Order will grant permission for the particular course of action in a dispute to be taken. The Court might also make directions requiring parents, even if they are opposed to the Specific Issue Order, to take steps to facilitate the course of action that the Court decides is best (so, for example, signing school applications). A Judge is entitled to step in and take those facilitative steps if a parent refuses.
A Special Guardianship Order is a form of Order designed to protect children who cannot live with their birth parents, but for whom adoption is not appropriate. So, in terms of where they fall on the spectrum of Orders, they bring with them greater rights and protections than a Residence Order but fewer than an adoption. Special Guardianship Orders are most often found in cases where extended family members or foster parents are caring for a child. A Special Guardianship Order may not be made in favour of a child’s parents. Certain important people in a child’s life are automatically entitled to seek a Special Guardianship Order. Those not automatically entitled may still ask for a Special Guardianship Order, but must obtain the Court’s permission to do so.
Special Guardianship Order (SGOs) are different to adoption, because a SGO keeps intact the legal relationship between a child and his or her parents. The parents retain Parental Responsibility if they previously had it. The holder of a SGO has a form of enhanced Parental Responsibility. It runs in parallel with the parents’ Parental Responsibility. However, if a dispute develops about a particular decision, the holder of a SGO has the final say. So, if there is a disagreement between a child’s parents and the holder of a SGO about the child’s schooling, the SGO would be able to make the decision. He or she would not need to apply to the Court for a Specific Issue Order.
Special Guardianship Orders have a number of other important legal consequences. These include:
Special Guardianship Orders can also enable holders to access practical and financial support from Local Authorities. This support can help towards the costs of the Special Guardian making the application and / or meeting the child’s needs once he / she has settled into the Special Guardian’s care.
The procedure for obtaining a Special Guardianship Order differs from Section 8 Orders. A Court will not make a Special Guardianship Order until the Local Authority where the child lives has prepared a detailed report.
When making a Special Guardianship Order, the Court is also required to bear in mind whether any other type of Order is appropriate, given the particular child’s needs and circumstances; for example, a Contact Order. Special Guardianship Orders can work very well in the right circumstances. They are not a solution suitable for everybody. Anyone considering applying for a Special Guardianship Order should seek expert legal advice about whether it is a suitable solution for their situation.
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