Private Law Orders


Private Law Orders Issued to Protect Children

In terms of private law orders, there are three principles outlined in Section 1 of the Children Act 1989. The first is that the welfare of children is of utmost importance. Second is that any delay is likely to prejudice the welfare of the child and thirdly, the courts cannot make law orders unless it would result in a better outcome for the child.

Private Law Orders

The Welfare Principle of Law Orders

The first of these principles, also known as the ‘Best Interests Principle’ is used by a court to determine a situation in relation to a child’s upbringing or the way in which a child’s property is administered. The child’s welfare should be the top priority.

Delay

When instigating court proceedings, unnecessary delays should be avoided at all costs. In line with Section 1(2) of the Act, it states that delays concerning decisions about the upbringing of a child can result in the welfare of the child being jeopardised. Furthermore, Section 11(1) states that when the court is considering whether to make a Section 8 Order, or there is any question in relation to a Section 8 Order, a suitable timetable will be drawn up to reach a decision and there shouldn’t be any deviation from this timetable.

No Order Principle

Within Section 1(5) of the Act, the Court must be satisfied that granting Law Orders would be more favourable to the child than doing nothing.

Section 8 Order

Sometimes a dispute may arise between those who are responsible for the care and welfare of a child. When this happens, a series of law orders are provided under Section 8 of the Children Act 1989 can be used. These include residence, prohibited steps or specific issue. There are also general provisions outlined in Section 1 which are applicable in all cases that relate to the upbringing of a child.

Residence Order

There are a number of important provisions contained within the Act that relate to a Residence Order including:

  • Section 8(1) – This relates to an order that outlines where the child will live
  • Section 12(1) – If the order is made in favour of a father who is unmarried and who doesn’t hold parental responsibility, the court shall also make an order under Section 4 which grants the father this responsibility
  • Section 12(2) – When an order is requested and is in favour of an individual who is not the parent or guardian of the child, this individual will assume parental responsibility while the order is active
  • Section 13 – If a residence order is active, the child’s name cannot be changed, neither can the child be removed from the UK for more than one month without the consent of everyone who holds parental responsibility over the child or with permission from the court.
  • Section 11(7) – Section 8 Orders may be issued but with conditions attached.
  • Section 91(10) – A Residence Order will last until the child reaches the age of 18 years.

In terms of shared residence:

  • Section 11(4) – Residence Orders can be granted to cover one or more people. In situations such as this the child may live in multiple places and if this is the case, the Order will specify with whom the child is to live and when.

Contact Order

Depending on the case, a Contact Order may be required. The legislation includes the following provisions:

  • Section 8(1) – When the child is to live with a designated individual, they must allow the child to have contact with the person named on the Order. They cannot obstruct or refuse contact.
  • Section 11(7) – The court may decide to impose certain conditions in relation to the contact
  • Section 9(6) – A contact order will last until the child reaches the age of 16 years, unless there are exceptional, extenuating circumstances

The contact set out in the Order may be direct or indirect

When the Court is deciding how contact will be arranged, they will use the following guidelines:

  • Children should know their estranged parent unless there are good enough reasons as to why contact should be denied
  • The Court should never deprive the child of contact unless they are completely satisfied that this would be in the best interests of the child
  • It should be naturally assumed that continued contact with the biological parent is the right thing to do

Even if there is evidence of abuse, this would not necessarily be a factor in removing contact entirely.

Prohibited Steps Order

  • Section 8(1) – This provides specific guidance on decision making in relation to the child. When applied, this means that a decision cannot be made without first seeking permission from the court.
  • Section 9(6) – A Prohibited Steps Order will last until the child reaches the age of 16 years unless there are extenuating circumstances.

Specific Issue Order

  • Section 8(1) – When issued, this will be an order that will allow a specific question to be answered usually in relation to parental responsibility
  • Section 9(6) – A Specific Issue Order will last until such time as the child reaches the age of 16 years except in exceptional circumstances.

About the author:

This article was written for Allaboutuklaw by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.

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