Children and their parents
The Family Justice System helps parents and carers resolve disputes about children. It oversees arrangements for children on divorce or where a civil partnership is formally ended. It encourages parents to reach agreements. If they cannot, the courts can make Parental Responsibility Orders and Section 8 orders to determine where children live, who they see and who can make decisions about them.
Help with agreeing arrangements
Arrangements for children on divorce
Parental responsibility orders and agreements
Section 8 orders
A booklet 'Children and the family courts' can be read or downloaded from Her Majesty's Courts Service website.
Help with agreeing arrangements
Help is available from mediators and there are many organisations which provide advice through leaflets or over the telephone. There are also booklets, called Parenting Plans, which are designed to help parents think about and discuss important issues concerning caring for their children after they have separated. You can get copies of the parenting plans here or by writing (FREEPOST) to Box 2001, Burgess Hill, West Sussex, RH1 8BR.
Arrangements for children on divorce
When the Court is considering granting a divorce, nullity, judicial separation or dissolution of civil partnership, it must consider the arrangements for the care and financial support of the “children of the family” and be satisfied with them. If the parties cannot agree or the arrangements are not suitable, the court can ask for reports from the local authority or CAFCASS and make orders about the children's care. The court may make Section 8 orders even where there has been no application if this is in the child's best interests.
The term "children of the family" means children of both a husband and wife or any other child who has been treated by a married couple or civil partners as a child of their family, except children who have been fostered with them by a local authority or voluntary organisation. Children need not live with the couple all the time and can be members of more than one family, for example where both their parents have remarried children are likely to be members of both families.
For further information see Her Majesty’s Courts Service website.
Parental responsibility orders and agreements
Parental responsibility is 'all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and the child's property'. Mothers, and fathers who are (or were) married to the mother when the child was born or afterwards have this automatically, other fathers can obtain it in one of 3 ways:
- By jointly registering (or re-registering the child's birth) after December 1, 2003
- By making a formal agreement a 'parental responsibility agreement' with the mother. A form for making a parental responsibility agreement (C(pra)) is available on Her Majesty's Courts Service website.
- By obtaining a parental responsibility order from the court.
Where a father who has not got parental responsibility gets a residence order the court will make a parental responsibility order as well.
Section 8 orders
Parents, relatives and carers and other people concerned about the arrangements for children can apply to the court for these orders but those who are not parents may need to get permission from the court to do this. Most applications are by mothers and fathers who are unable to agree about contact.
There are different types of Section 8 orders:
- ‘Residence orders’ say who the child should live with.
- ‘Contact orders’ say who the person looking after the child must let the child see, stay with or receive messages from (letters, telephone calls etc ).
- ‘prohibited steps orders’ prevent a child's parents, or any other named person, from taking certain steps, such as taking a child abroad without first getting the court's permission.
- ‘Specific issue orders’ set out precisely how a particular matter about the child, for example schooling or health care should be handled.
Applying for Section 8 orders
An application for a Section 8 order is made by filling in the relevant form and asking the court to start proceedings. You can get help with this from Her Majesty's Courts Service website.
Usually, the first step is to inform the other parent and anyone who is looking after the child so that they can take part in any hearing. But in an emergency the court can hear a case without giving notice and make orders for the child's immediate care. Children may be made parties to these proceedings but this does not happen routinely.
Under the Private Law Programme there can be 4 stages to these proceedings, application, first appointment finding of fact hearing and final hearing:
Application
Currently in most parts of the country, there is no active screening for domestic violence or other matters which could put a child at risk when an application is made for a section 8 order. However, the parties can tell the court about concerns they have this by completing for C1A, known as the the Gateway Form. In some cases, the court may also obtain information from other agencies such as the local authority or the police.
First Appointment
Where the court is satisfied that domestic violence is not an issue, the parties will be encouraged to explore the possibility of agreeing arrangements about their children. A meeting may be arranged with a CAFCASS officer who can help them reach agreement or they may be referred to a mediation service.
If the parties reach agreement, the court can make orders by consent if this is in the child's best interests. If the parties do not agree, the court will give directions about the case, particularly obtaining evidence and reports and the timetable for the proceedings. It may order CAFCASS to provide a report. Any report will be prepared by a CAFCASS officer who has not been involved in the case. The court can also direct other assessments to be carried out and allow the parties to obtain expert evidence.
Finding of fact hearing
Where one party alleges that there has been violence or raises other concerns the court may hold a ‘finding of fact’ hearing to decide if the allegations are proved, and how they affect the issues the court has to decide. The court considers the evidence presented by the parties and any witnesses, together with reports from CAFCASS, the local authority etc
Final Hearing
At the Final Hearing, the court considers what decisions need to be made in the light of any findings of fact, reports on the child’s welfare and any other evidence. The court makes the orders it decides are necessary for the child's welfare.
Enforcement of court orders about children
The court has powers to enforce the orders it has made concerning children. By making an order about contact, the court has already decided that having contact is in the child's best interests. The Court can attach a 'penal notice' to an order to secure the attendance of a party at a hearing or their compliance with a Section 8 order. Breach of an Order can lead to contempt proceedings and the defaulting party can ultimately be fined or imprisoned. Occasionally, where the parent with care repeatedly refuses to comply with a contact order, the court has decided that the child should live with the other parent. However, it may not be in the child's interests for orders to be enforced.