Intoduction to FAMILIEFORJUSTICE
Child Snatchers
The Goverment Abduction Squad
END OF THE WITCH HUNT
M.S.B.P.- MUNCHAUSEN SYNDROME by PROXY
NO CHILD LEFT BEHIND
HOW SOME ARE TREATED AFTER BEING ABDUCTED BY THE STATE
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GUIDANCE ON COMBATTING FALSE ACCUSATIONS OF CHILD ABUSE – U.K.
Contact After Adoption-IMPORTANT
How Family Law Should Be- Advice Service
HOW TO GET YOUR CHILDREN BACK
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FAMILY LAW
 | The aim of this page is to try to address some of the many and varied areas of law that affect family life, and to indicate where to turn for help.
Disputes relating to children
The majority of disputes between parents in relation to their children are governed by the Children Act 1989.
Parental Responsibility
The Children Act 1989 defines parental responsibilities as: all rights, duties, powers, responsibilities and authority which by law a parent of a child have in relation to the child and his property.
Parental Responsibility has many different aspects to it and includes:-
1) Naming a child
2) Determining the child’s religion
3) Determining the child’s education
4) Consenting (or not) to the child’s medical treatment
5) Consenting (or not) to the taking of blood for testing
6) Consenting (or not) to adoption
7) Arranging for the child’s emigration
8) Protecting and maintaining the child
9) Administering the child’s property
10) Allowing the child to be interviewed
The above list is not exhaustive, as parental responsibility is continually developing to address different circumstances and situations.
Acquiring Parental Responsibility
If the parents are married when the child is born then both mother and father acquire Parental Responsibility automatically.
Fathers can obtain Parental Responsibility in two ways:-
1) By agreement with the mother – by filling out the appropriate form and registering the agreement with the Principal Registry of the Family Division (Form C (PPR)).
2) By court order – if the mother does not agree to share parental responsibility, the father may apply to the court for an order.
In considering whether to make an order for parental responsibility the court will take into account the following factors:-
1) The reasons for applying for the order.
2) The attachment between the child and the father.
3) The commitment the father has shown to the child.
Parental Responsibility can also be acquired (to take effect after the parent’s death), if a parent appoints a guardian for the child.
The Adoption and Children Act 2002 (to be implemented in stages during 2003-2004) will amend how parental responsibility can be acquired. Section 111 of the Act will amend the Children Act 1989 so that a father not married to the mother at the time of the child’s birth will acquire parental responsibility if his name is placed on the birth certificate or registered under the Births and Deaths Registration Act 1953. A father cannot register his name on the child’s birth certificate without the consent of the mother. Fathers now if the child was born on or after 31st December 2004 and are registered on the birth certificate have parental responsibility automatically.
Extended Rights for Step-Parents
Section 112 of the Adoption and Children Act 2002 when implemented will amend the Children Act 1989 to allow a step-parent to acquire parental responsibility for a child of his/her spouse:-
1) Agreement between step-parent and parents who have parental responsibility for the child.
2) Or by order of the court.
Termination of Parental Responsibility
An appointment of a guardian can be changed and/ or revoked (set aside) either by the individual who has been appointed as guardian or by court order. The child can also apply to the court to revoke the order.
If parental responsibility has been acquired automatically (by married parents when the child is born and by unmarried mothers), it can only be terminated by the granting of an adoption order in favour of another party.
Where parental responsibility has been obtained by agreement or court order it can be revoked by a court order.
Parental responsibility ends automatically when a child reaches the age of 18.
Children’s Act 1989 Section 8 Orders
Section 8 orders deal with:-
1) Residence
2) Contact with a child
3) Disputes that may exist between individuals who share parental responsibility
Section 8 orders currently cannot be made for a child who has reached the age of 16. However, when the Adoption and Children Act 2002 is implemented, the court will have the power to direct that a residence order can remain in force until the child is 18. Section 8 orders should be made at the magistrates/county court that is local to the child, not the applicant.
Residence Orders
A residence order determines with whom the child should live, and can be made in favour of any individual. More than one person can have a residence order and it is usual for the order to set out who the child will live with either over certain specified times or indefinitely.
An order that has been made indefinitely can still be challenged and revoked either by court order or agreement.
If a child is taken into care by a local authority then any existing residence orders are automatically superseded (invalid).
Where a residence order exists, the person whom it favours can remove the child from the jurisdiction of the court for up to 28 day. For any longer periods they must have the agreement of someone who either has parental responsibility or has a court order.
Contact Orders
A contact order is an order that sets out when the person with whom the child lives should make the child available to spend time with another person. The contact can be visiting or staying. Contact orders can be varied or revoked.
Prohibited Steps Order
This is an order which specifically directs the person named in the order not to do a specified act without permission of the court.
Specific Issue Order
This is an order that deals with a specific aspect of parental responsibility, where those with parental responsibility cannot agree and so the matter must be determined by the court – for example, if parents are unable to agree on which school a child should attend.
Applying For Section 8 Orders
In the majority of cases, it is usually the parents that are in disagreement. However, other people can in certain circumstances apply:-
1) A parent or guardian of a child
2) Any individual who has a residence order in their favour
The following individuals are also entitled to apply for residence or contact orders automatically:-
1) A person with whom the child has lived for three years – the period of time does not have to be continuous but must not begin more than five years, or end more than three months, before the making of the application.
2) A spouse or ex-spouse, where the child is a child of the family.
3) Where the person applying has the consent of those who have parental responsibility.
If a person is not entitled to apply automatically for a residence or contact order, then they must first obtain permission from the court to make this application. This is known as obtaining leave to apply. For example, where a grandparent is seeking an order for contact.
Application for Leave
In considering whether to grant leave the court will take into account the following factors:-
1) The nature of the proposed application
2) The applicant’s connection to the child
3) Any risk there might be of the proposed application disrupting the child’s life to such an extent that the child may be harmed by it
4) If the child is being looked after by the local authority
5) The authority’s plans for the child’s future
6) The wishes and feelings of the parent
Applications by Children
A child can in certain circumstances make a section 8 application. As courts are cautious of involving children in what can become a highly charged emotional situation, a child must also seek leave before an application can be pursued. For a child seeking leave, the only factor the court is directed to consider is:-
1) Whether the child has sufficient understanding to make the proposed application.
However, the fact that the child does have sufficient understanding to make the application does not mean the court must grant leave. The court will consider all the general circumstances of the case, including:-
1) The best interests of the child
2) The nature of the application and whether the child’s case is the same as another party’s
3) The likelihood of success
Applications for leave for children should be made in the High Court. A child may also apply to become a respondent in a section 8 application. The request must be made by filing a form C2. The court will then consider the application at a hearing where all parties are present.
Application for Section 8 Orders - Procedure
Directions Appointment
Once the application has been issued, the court will list the matter for a short hearing (the directions appointment), for usually not more than 30 minutes.
Conciliation Appointment
If a Children and Family Court Advisory Support Service (CAFCASS) officer is available at the first directions appointment, the parties will be asked to speak to the officer without their lawyers. This is called a conciliation appointment and the purpose is to see if some agreement can be reached without further court involvement.
If an agreement is reached to each party’s satisfaction then the court will consider whether that agreement needs to be set down in a court order or not. An order will only be made where it is considered necessary.
If it is not possible to resolve the matter at the conciliation appointment, the parties and the court will consider what needs to be done before the matter can be adjudicated upon. It is usual for statements to be filed and a CAFCASS officer to report on the issues in dispute. These reports can take up to four months to prepare and include the relevant child(ren) being seen by the officer.
Principles Applied By The Court In Determining Section 8 Orders
The fundamental principle is that the child’s welfare is the paramount consideration when the court is considering an application.
The CAFCASS officer and the courts apply the welfare checklist when considering the child’s welfare. It is set out in the Children Act 1989 and consists of the following:-
1) The wishes and feelings of the child (considered in the light of age and understanding).
2) Physical and emotional needs.
3) The likely effect of any change in circumstances.
4) Age, sex and background, and any other characteristics that the court considers relevant.
5) Any harm the child has suffered or is at risk of suffering.
6) How capable each of the parents (and any other person the court considers to be relevant) is of meeting the child’s needs.
7) The range of powers available to the court under this Act.
All these factors must be taken into account when the court is asked to make, vary or discharge a section 8 order. The significance and weight attached to each factor will depend on the facts of the case. For example, the court is more likely to take into account the wishes and feelings of a 14-year old than a five year old child.
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CHILD ABDUCTION
Disappearance Of A Child
The Family Law Act 1986 provides a court with the power to order any person to disclose information to the court as to the whereabouts of the child, if the child’s whereabouts are not sufficiently known. This can include members of the family, schools and organisations such as child benefit agency. Once the information has been obtained the court can then serve any court papers on the applicant’s should there be legitimate reasons (eg, domestic violence) why the respondent does not want their address disclosed.
A court can authorise and officer of the court or a constable to take charge of a child and deliver the child to the relevant person who is entitled to have the child reside with them. Such an order may be appropriate where a child is being unlawfully held after contact. However, as this order authorises the use of force to take charge of a child, it is not granted unless it is in the interests of the welfare of the child.
If it is feared that an attempt may be made to remove a child from the jurisdiction of England and Wales, the child may be made a ward of court and orders made to prevent the removal of the child.
Wardship
Where a child is made a ward of court, the court has the power to grant orders that are thought necessary for the protection of the child as the court is temporarily responsible for the care and control of the child.
Lawful Removal
A parent who has a residence order in their favour is allowed to remove a child from the country for up to 28 days. For any longer period. Or for permanent removal, the consent of all parties that have parental responsibility needs to be obtained. In the absence of such consents, the matter must be put before the court on an application to remove from the jurisdiction.
Committal
If an order already exists from an English court and this has been breached, the parent can apply for the committal of the abducting parent. If the court finds the abducting parent has breached a court order, then a punishment, including custody, can be imposed. However, if the abducting parent is out of the jurisdiction, the committal will have little practical effect and may even deter the return of the parent.
Sequestration
If the abducting parent has assets in the UK then an application may be made against those assets. Orders can be made freezing assets. If the abducted parent owns a property, the court can make orders against that property to assist the other parent to raise money to finance litigation abroad.
Local Authority Orders
If a local authority has concerns about the care of a child that is resident in its borough, it has a duty to investigate and the power, in certain circumstances, to intervene.
Education order
If there are concerns regarding a child’s education this order allows the child to be placed under the supervision of the local authority. The court will make an order where it concludes that the child is not being properly educated.
Child Assessment Order
If a local authority considers a child may be at risk but is having difficulties obtaining access to the child, it can apply for a child assessment order. The local authority must satisfy the court of the following factors before an order is made:-
1) The applicant has reasonable cause to suspect that the child is suffering or likely to suffer significant harm.
2) This can only be determined by an assessment of the child’s health and development.
3) It is not likely that an assessment can be made without an order.
The order can last for a maximum of seven days and allows the local authority to remove the child from its home, if it considers necessary.
Emergency Protection Order
If the local authority’s concerns are significant, it can apply for an emergency protection order. The order can be made ex parte, which means that the local authority does not need to inform the parents or any other person before making the application. The local authority must satisfy the court of the following before an order is made:-
1) That enquires are being frustrated and the access to the child is urgently required.
2) There is reasonable cause to believe that the child is likely to suffer significant harm if not removed from the home.
The initial order lasts for eight days and can be extended for a further seven days. During the time the order is in force the local authority has parental responsibility for the child.
Supervision and Care Orders
A supervision order places a child under the supervision of a local authority. The local authority does not have the power to remove the child from the home, nor does it obtain parental responsibility for the child. However supervision orders can have conditions attached to them. A supervision order can be for any period up to two years.
A care order places the child into care of the local authority. This means that a child can be removed from the home and placed either with foster carers or in a local authority care home. In some circumstances a child may continue to reside at home even though the local authority has a care order. The local authority obtains parental responsibility for the child. A parent or guardian who has parental responsibility for a child does not lose it once a care order is obtained. However, any residence orders that are in existence are automatically, terminated. A care order, unless discharged earlier, lasts until the child reaches 18.
Before a care order or supervision order is granted the court must be satisfied:-
1) That the child has suffered or is likely to suffer significant harm.
2) That the harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the order were not made.
3) The child is beyond parental control
Care Plan
When the local authority applies for a care order or supervision order, they must file with the court a care plan for the child. This sets out the local authority’s concerns and their plans for the child’s future.
The court through CAFCASS, appoints a children’s guardian. Once proceedings have been commenced, the guardian will represent the child in the proceedings. The guardian’s role is to investigate and make representations on behalf of the child.
Parental Contact With A Child In Care
When an emergency protection order is granted, the local authority is under a duty to allow reasonable contact between the child and the parents. If a child is to be removed prior to a child assessment order, the court order must contain directions (as the court considers appropriate) regarding contact for any longer period, it must apply to the court.
If a parent is not satisfied with the contact that they are receiving to a child in care then they are entitled to make an application to the court for contact.
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ADOPTION
An adoption order is a court order which gives the parental responsibility for a child to the adopters. Its effect is to extinguish the parental responsibility which anyone, including a parent, has for the child prior to the order’s being made.
Where the applicant is:-
1) A parent
2) A step-parent
3) Relative of the child
4) Someone with whom the child was placed by an adoption agency
5) Someone with whom the child was placed following a High Court order
An adoption order shall not be made unless the child is at least:-
1) 19 weeks old and has had their home with at least one of the applicants throughout the previous 13 weeks
2) 12 months old and has lived with at least one of the applicants throughout the previous 12 months
Currently, an adoption order may be made on the application of one person as long as they are at least 21.
In deciding whether to adopt, the court is bound to give first consideration to the need to safeguard and promote the welfare of the child throughout their childhood.
An adoption order shall not be made unless:-
1) The child has been the subject of a freeing order
2) The court is satisfied that each parent or guardian has freely and unconditionally agreed to the making of an adoption order.
3) The agreement of each parent or guardian can be dispensed with on the basis that she/he:-
a) Cannot be found or is incapable of giving agreement.
b) Is withholding their agreement unreasonably
c) Has persistently failed without reasonable cause to discharge parental responsibility for the child
d) Has abandoned or neglected the child
e) Has persistently ill-treated the child
f) Has seriously ill-treated the child, and the rehabilitation of the child within the household of the parent guardian is unlikely.
Where the court is considering dispensing with the agreement of the parent/guardian it must first decide that adoption is in the best interests of the child.
The Adoption and Children Act 2002 (to be implemented by summer 2004) makes changes to the current adoption process.
The welfare of the child will be paramount consideration in all decisions relating to adoption.
Placement orders will replace freeing orders, and will create a new legal process for placing a child for adoption through an adoption agency.
It will be the duty of the local authority to apply for a placement order where it is satisfied that the child should be adopted but the parents do not consent to the placement or have withdrawn their consent.
Parental responsibility under a placement order will be vested in the adoption agency, and while the child is placed with prospective adopters, in them also.
The definition of a couple for the purposes of adoption includes married, unmarried and same sex couples ‘living as partners in an enduring family relationship’.
Order for Contact
On making an adoption order the court has the power to attach conditions, but will generally be reluctant to do so. The court can consider whether to make an order for contact at the same time as making an adoption order.
Contact could consist of:-
1) Direct face-to-face contact with the child, which will normally be with the agreement of the adopters.
2) Or indirect contact such as the sending of letters or cards and the exchange of information.
The Adoption and Children Act 2002, when implemented, will introduce special guardianship orders which will create a ‘half-way house’ between a parent maintaining parental responsibility and losing parental responsibility on adoption. Special guardianship orders will be suitable in cases where, although adoption is considered to be in the best interest of the child, the child may wish to maintain contact and other ties with his/her natural parents. The natural parent will not lose parental responsibility for the child, and thus a legal relationship will remain between the child and the natural parent. However, the special guardian(s) once appointed will be able to exercise parental responsibility to the exclusion of all others who have parental responsibility.
Upon application, a court will be able to vary and or discharge special guardianship orders.
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