#1848 - Section 8 Orders - Family Law

Section 8 Orders

When s.8 orders can be made

• In private cases involving children, the courts may make one of the orders mentioned in s.8 of the CA 1989.

  • A s.8 order cannot be made in respect of a person over the age of 18

  • CA 1989 s.9(6): If the child is 16/17 then apart from residence orders, s.8 orders should not be made unless the circumstances are exceptional

    • E.g. Re M (A Minor)(Immigration: Residence Order) – b/c M had no relatives living in the UK, this was sufficiently acceptable to justify the making of an order until he was 18

The residence order

• Effect

  • CA 1989(1):

    • A residence order is an order settling the arrangements to be made as to the person with whom a child is to live

  • Normally it will be made in favour of a parent, but can in fact be made in favour of anyone

    • It confers parental responsibility on whoever it is made in favour of, if they do not already have it

      • But once it is revoked, parental responsibility also disappears w/o a separate order to that effect.

    • s.12(1): If an order is made in favour of an unmarried father, the court is obliged to make a separate order for parental responsibility.

• Shared Residence Order

  • S.11(4):

    • A residence order can be made in favour of two people (even if they do not live together)

  • This order requires the child to spend a certain amount of time with one person, and a certain amount of time with another

    • It is debateable when a shared residence order is appropriate, vs. separate residence and contact orders

• When will shared residence orders be made?

  • Re K (A Child) (shared residence order) [2008]: F applied for a ruling that his son G, a six year old, should divide his time equally between the homes of F and M and that the ruling should be expressed as terms of an order for shared residence in favour of both parents. Their current contact arrangement afforded to the father about 40% of G's time and, thus, to the mother about 60% of it.

    • Ward LJ

      • A shared residence order is not apt only where the children will be alternating between the two homes equally

        • Equality of contact time and shared residence are not issues which stand or fall together – they are separate

        • A shared residence doesn’t technically give one parent greater control than the other, but there is a danger of one parent using it to interfere and disrupt the other’s parenting

          • So even if a parent is given substantial contact, sometimes a shared residence order is not appropriate if this might occur.

    • Wall LJ

      • A shared residence order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents.

        • The order can have the additional advantage of conveying the court's message that neither parent is in control

          • and that the court expects parents to co-operate with each other for the benefit of their children

      • However, equality of contact time does not necessarily follow.

  • Holmes Moorhouse v Richmond LBC [2009]: The parents were granted a shared residence order which provided that the children should spend alternate weeks and half of their school holidays with each parent. C applied to the LA for accommodation as a homeless person through statute, contending that he was in priority need since dependent children “might reasonably be expected to reside” with him. The local authority rejected his application.

    • Lord Hoffmann:

      • Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent

        • Indeed the CoA recently approved the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father,

          • even though the child actually stayed with him only on alternate weekends

      • When a court determines any question with respect to the upbringing of a child, the child's welfare is the paramount consideration

        • But paragraph (f) also requires the court to consider “how capable each of his parents … is of meeting his needs”.

        • If a parent has no accommodation, the courts has no power to conjure it into existence

          • The court's decisions as to what would be in the interests of the welfare of the children must be taken

            • in the light of circumstances as they are or may reasonably be expected to be

    • Baroness Hale

      • This order should not have been made. It is one thing to make such an order where each parent has a home to offer the children, even if it’s not quite up to the standard the child had before.

        • It is another thing entirely to make such an order when one parent is living in the family home

          • and the other parent has no accommodation at all to offer them and no money with which to feed and clothe them

      • Family court orders are meant to provide practical solutions to the practical problems faced by separating families.

        • They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation.

          • Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable.

The contact order

• The effect of a contact order

  • As well as deciding whom the child should live with, the court must also consider whether the child should have regular meetings w/ their other parent

    • Or indeed other relatives or family friends

  • Often this will be a bitter area of dispute

    • The residence parent may be deeply opposed to the child seeing the other parent, particularly if the contact parent remarries

    • Conversely, the contact parent will seek to do all they can to retain contact with the child and make the most of the contact permitted.

• Who has the obligation of enabling contact

  • CA 1989 s.8(1)

    • An order requiring the person with whom the 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 otherwise to have contact with each other

  • Herring: definition of a contact order is interesting – suggests two potential options, although the courts have not articulated the distinction

    • 1. Order can be directed at the residential parent requiring him or her to permit the child to have contact with person named in the order

      • So if the residential parent prevents contact then they will be in breach of the order and could ultimately be imprisoned for contempt

    • 2. The order can state that the child and another person are to have contact

      • This seems to impose no obligation on the residential parent, and thus no breach if the contact did not take place

• Is a “no contact” order a contact order?

  • Nottingham CP v P [1994] – contact order can be directed against residential parent to not allow contact with a specified person

    • So this may be appropriate if M has a paedophile friend whom the court does not wish M to introduce to the child

  • Re H (Minors) (Prohibited Steps Order) – a prohibited steps order can be made against the person the court does not wish to have contact with the child

    • This may be appropriate if F has abused his stepchildren, but is now seeking contact – little residential parent may be able to do to stop this.

• What can contact involve?

  • Direct Contact: Normally face to face meetings are appropriate.

    • However, it may be supervised by social services in contact centres:

      • C (Abduction: Residence and Contract – HRA 1998 indicates that there’s a presumption in favour of normal contact and there had to be clear evidence to justify requiring contact to be supervised.

  • Indirect Contact:

    • This can be emails, letters, cards and presents

      • This may be appropriate if said parent is in prison

      • Or if parent has not met the child before and needs to establish/ re-establish links

Specific issue orders and prohibited steps orders

• SIO

  • CA 1989 s.8(1):

    • An order giving directions for the purpose of determining a specific question which has arisen or may arise

      • In connection with any aspect of parental responsibility for a child

  • This is normally designed to deal with a one-off issue, and either obliges someone to act positively in some way, or refrain from some activity

• PSO

  • S.8(1)

    • 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 w/o the consent of the court

  • The PSO is entirely negative – it tells a parent what they may not do in respect of their child

Restrictions on s.8 Orders

• The order must relate to an aspect of parental responsibility

  • So they must be made in respect of the child, not trying to sort out some relationship between the parents

    • Croydon LB v A – contact between parents cannot be regulated by a s.8

    • N v N (Jurisdiction: Pre Nup – nor can F be compelled by s.8 to give W a Jewish divorce.

  • However, a s.8 order can be directed at someone who does not have parental responsibility, so long as it concerns the exercise of parental responsibility

    • E.g. a Neighbour could be issued with a PSO forbidding him to speak to the child, even though N does not have parental responsibility

      • b/c it would be an exercise of parental responsibility if N did speak to the child.

• S.8 cannot be used to disguise other orders

  • There is no power to make an occupation or non molestation order through s.8

    • Re D (Prohibited Steps Order) – not allowed to make a SIO or PSO which has the effect of a occupation or non-molestation order

      • This has the be...