children

University of Derby - Family Law and Practice

Overview of the Course

  • Institution: University of Derby

  • Course Focus: Family Law and Practice

  • Weekly Topic: Week 4 - Private Children's Law

  • Teaching Excellence Framework (TEF): Gold status.

  • Guardian University Guide 2019: Top 30.

Learning Outcomes

  • By the end of this session, students will:

    • Have a sound understanding of the law in relation to children’s law.

    • Understand what orders the court can make to regulate the welfare of children.

    • Recognize the factors the court must consider when considering such applications.

Categories of Law

  • Public Law: Involves cases where the Local Authority makes an application to the court for the removal of a child from their parents' care.

  • Private Law: Concerns individual applications for custody, contact, or other parental rights regarding children living with another party.

    • A court may become involved when parents are unable to make decisions about a child’s welfare.

    • Definition of a Child: Under the Children Act 1989, a child is defined as anyone under the age of 18 (Section 105(1)).

Court Decisions May Include:

  • Where the child should live.

  • How much time the child should spend with each parent.

  • Which school the child should attend.

  • Which religion the child should practice.

  • What medical interventions the child should receive.

Child Arrangements Programme (CAP)

  • Introduction: The Child Arrangements Programme (CAP) was established as a Practice Direction under Part 12 of the Family Procedure Rules 2010 on April 22, 2014, succeeding the 'Private Law Programme'.

  • Objective: To encourage resolution through mediation, reducing reliance on court proceedings.

  • Mechanism: If families cannot reach an agreement, the CAP promotes swift court resolutions focusing on child welfare.

  • Parties and Court Responsibilities: Must adhere to FPR Rule 1 concerning the overriding objective of the court.

    • (1) Ensure just dealing of cases.

    • (2) Deal with cases expeditiously and proportionately.

    • (3) Maintain equality of the parties.

    • (4) Save costs.

    • (5) Appropriately allocate court resources.

Parenting Plan

  • Definition: A Parenting Plan serves as an agreement for separated parents about child arrangements.

  • Purpose: A tool for conflict resolution, ensuring all practical aspects of child care are communicated clearly.

  • Contents: Should cover communication, living arrangements, finances, religion, education, health, and emotional well-being.

  • Importance: Should be comprehensible to all parties involved, including children of appropriate age.

  • MIAM Requirement: Attendance at a Mediation Information Assessment Meeting (MIAM) is required before court applications, with exceptions for domestic abuse or child protection concerns.

MIAM Exemptions

  • Circumstances exempting attendance include:

    • Domestic abuse.

    • Presence of a related court matter.

    • Urgency of application.

    • Mutual agreement of no dispute.

    • Lack of knowledge about the other party's location.

    • Social care involvement.

    • Lack of nearby mediators.

    • Previous MIAM attendance within four months.

    • Indicated non-willingness of the other party to attend.

    • Non-residency within England or Wales.

Welfare of the Child

  • Paramount Consideration: According to Section 1(1) of the Children Act 1989, the child’s welfare is the court's primary concern, overriding parental interests.

  • Presumption of Involvement: The Children and Families Act 2014 introduced Section 1(2A), which presumes that parental involvement benefits the child's welfare, unless proven otherwise.

  • Caveat: This presumption is contingent upon parental actions not posing any significant harm to the child.

Welfare Checklist

  • The court must consider several factors during welfare evaluations:

    • (a) Ascertainable wishes and feelings of the child.

    • (b) The child’s physical, emotional, and educational needs.

    • (c) Possible effects of changes on the child's circumstances.

    • (d) The child’s personal characteristics (age, sex, background).

    • (e) Any history of harm or risk of suffering.

    • (f) Powers available to the court in the proceedings.

Best Interests vs Human Rights

  • Conflicts may arise between the best interests of a child and human rights under:

    • Article 6 HRA 1998: Right to a fair trial.

    • Article 8 HRA 1998: Right to respect for private and family life.

  • Discussion Point: The court must consider all parties' human rights while making decisions in children’s cases.

Considerations with Multiple Children

  • Courts must assess the best interests of all siblings involved in proceedings, noting that different children may have different welfare needs.

  • Balancing Exercise: When interests conflict, the court must evaluate needs per child and determine the least detrimental option.

  • Case Reference: Re T and E (1995) 1 FLR 581 concerning conflicting interests among children.

No Order and No Delay Principles

  • No Delay Principle: Delay in outcomes unnecessarily compromises child welfare (See Section 1(2) Children Act 1989).

  • No Order Principle: An order shouldn’t be made unless it’s deemed necessary and beneficial compared to making no order (See Section 1(5) Children Act 1989).

  • Case Reference: Re X and Y (2001) 2 FLR 118 discusses burden of proof in demonstrating a child’s best interests.

Orders Available Under Section 8 Children Act 1989

  • Types of Orders: Derived from the Children and Families Act 2014, include:

    • Child Arrangement Order (determines living and contact arrangements).

    • Prohibited Steps Order (prevents specific actions regarding the child).

    • Specific Issue Order (addresses particular parenting queries).

    • Special Guardianship Order (Section 14A Children Act 1989) - not applicable to biological parents.

Child Arrangement Orders

  • Definition: Relates to where a child will live and contact with others.

  • Legal Consideration: Reinforces both parents’ involvement unless demonstrated that such involvement is detrimental (Case Reference: Re O (2004) 1 FLR 1258).

  • Parental Responsibility: Gained through court orders, typically when court deems it necessary.

Recent Case Example

  • Re CK (2020) EWHC 3746 (Fam): Court mandated a heart operation for a child in the care of her grandmother due to the mother's inability to consent due to learning disabilities.

Orders Attached to Child Arrangement Orders

  • Conditions under Children Act 1989 Section 13:

    • Consent required for name changes or child removal from the UK (unless specified under Section 13(2)).

Specific Issue Orders

  • Purpose: Address specific queries about parental responsibility.

  • Examples:

    • Religious practices (Re J (2000) 1 FLR 571).

    • Child's rights about paternity (Re F (2008) 1 FLR 225).

    • Vaccination decisions (F v F (2013)).

Prohibited Steps Orders

  • Definition: Prevents parents from taking certain actions concerning a child’s welfare without court permission.

  • Examples Include:

    • Preventing surgical procedures.

    • Cautioning associates of the child.

Prohibited Steps / Specific Issue Orders Duration

  • Such orders typically cannot extend past the child’s 16th birthday (Children Act 1989 Section 9(6)), but exceptions may apply until the age of 18 in special circumstances.

Alternative Dispute Resolution (ADR)

  • Requirement: Courts must consider ADR at every stage, such as mediation through MIAM.

  • Regulations: Family Procedure Rules 2010 PD 3A emphasize pre-court mediation attempts.

Eligibility for Section 8 Orders

  • According to the Children Act 1989:

    • Entitled Applicants: Include parents, guardians, and designated caregivers.

    • Leave to Apply: Those outside specified categories may need court permission (Section 10(2)).

Application for Leave to Apply

  • Court considerations when permitting applications:

    • Nature of the application.

    • Applicant's connection to the child.

    • Risk of disruption to the child’s life.

Knowledge of Section 8 Application

  • Automatic notification to:

    • Everyone with parental responsibility.

    • Local authority if under care order.

  • Other relevant parties may need limited notice of the application.

Domestic Abuse in Proceedings

  • Importance: Acknowledged as a significant factor in children proceedings, merit further discussion in subsequent sessions.

Family Assistance Orders (FAO)

  • Purpose: Provide short-term assistance to families under Section 16 of the Children Act 1989.

  • Consent Requirement: Every named person (except the child) must consent to the order, and the order can only last for up to 12 months.

Appointment of a Guardian

  • Function: In complex private law cases, guardians are appointed to ensure a child's independent representation.

  • Guardians are independent social workers responsible for recommending actions in the child’s best interest.

Section 7 and Section 37 Reports

  • Section 7: Reports on child welfare can be requested from CAFCASS or local authorities.

  • Section 37: Investigates child circumstances in potential care order situations.

Private Law Proceedings - Procedure Overview

  • Procedures outlined in Family Procedure Rules 2010 govern court processes regarding children's cases.

  • Fact Finding Hearings: Necessary for disputed issues, such as domestic abuse allegations.

  • Evidence of abuse's impact on children is essential.

Statistics and Reporting Changes

  • As of April 2025: 23,667 new children's cases and 27,021 open children's cases were recorded, marking respective increases of 3.1% and 2.1%.

  • Family Procedure Rules: Govern public access to court hearings and reporting requirements for media.

Upcoming Workshop Sessions

  • Next topics will include Domestic Abuse, Non-Molestation Orders, and Occupation Orders in the context of family law.

Conclusion

  • The study of children’s law requires understanding multifaceted legal frameworks, the emphasis on child welfare, and recognition of human rights implications in legal proceedings.