Section 8 orders continued

1. Family Law
13.03.2012

2. Lesson Objectives
All learners will:
Be able to list the orders available under s.8
Children Act 1989.
Most Learners will:
Be able to define 2 orders.
Some learners will:
Be able to list cases with regard to the 2 orders.

3. The orders available under s.8
Section.8 lists four orders that can be made,
together with directions as to how the order is
to be carried out. The court has wide powers
to impose conditions on the person in whose
favour the order is granted and to specify the
period for which the order, or any provisions
contained in that order, will have effect.

4. Residence Order
Definition: An order settling the arrangements
to be made to the person with whom a child is
to live.
The making of a residence order does not
affect the joint PR of the child’s married
parents and the court will try to ensure that
the child’s relationship with both parents
suffers as little as possible.

5. The effect of a residence order is to determine where the
child should live, but it also has the following effects:
(1) A residence order can be in favour of someone who
is not a parent; and confer PR.
(2) It does not confer full parental powers on a non-
parent; such a person, cannot, for example, consent
to adoption or appoint a guardian.
(3) The court may attach detailed conditions to the
residence order, for example, conditions that the
child should not be removed from the resident
parents, that the child should not change schools, or
that the child should not be allowed to see a
particular friend of the resident parent.

6. Residence order (3) cont’d
B v B (Residence: conditions limiting the geographical
area) [2004], the court imposed a condition on a residence
order granted to the mother requiring her to live within a
defined area around the M25. The court recognised that
this was an unusual condition and would not normally be
imposed but considered it appropriate in this case.
The child had lived with the mother in the specified area
for some time and the mother’s plans to move to the north
of England were very vague. The court considered that the
mother was simply trying to frustrate the father’s contact
with the child. Similar concerns justified imposing a
condition in ETS v BT [2009].

7. Residence order (4)
The residence order prevents anyone from changing the
child’s surname or removing him from the UK for more than
a month without the written consent of every person with
parental responsibility; or the permission of the court. Such
issues are frequently dealt with as a condition attached to
the order.
Where a child’s surname is that of his father, it is usually
seen as a vital connection with his father and the court will
not readily permit a change, even to that of the resident’s
mothers new married name, unless convinced that the
change would promote the child’s welfare (Dawson v
Wearmouth [1999]).

8. Residence Order
The principles that apply on an application for permanent removal
from the jurisdiction are now well established. The application is
usually made by a resident mother who wishes to go abroad to be
with her family or a new partner. She must first establish that her
wish is genuine (i.e. Not motivated by a desire to break the child’s
contact with the father) and practical (i.e. Plans for residence and
schooling are in place and consideration has been given to contact
arrangements.
The court will then consider whether the other parent’s opposition
is based on genuine concern for the child or a desire to frustrate the
other parent’s plans. If neither parent is driven by ulterior motives,
the court will consider whether the move is in the best interests of
the child.

9. Residence Order
It is possible for persons other than the parents
to apply for a residence order, and there is no
presumption that a residence order should be
made in favour of a biological parent.
However, in Re G (Children) (2006) the HL
reversed the decision of the lower courts to
transfer residence to the mother’s lesbian ex-
partner on the basis that they had failed to attach
sufficient weight to the biological link between
the mother and her children.

10. Residence Order
However, the welfare of the child still remains
paramount consideration. In Re B (a child) (2009)
the Supreme Court held that a boy of 3 should
remain with the grandmother with whom he had
lived since birth rather than moving to live with
his father. In so holding, it reinstated the decision
of the Family Proceedings Court, on the basis that
its decision could not be characterised as plainly
wrong and that there had therefore been no
basis for interference.

11. Residence Order
A residence order may be made in favour of two people
who are living apart. It will usually specify how long the
child should stay at each residence. A residence order
made in favour of two parents living apart will cease to
have effect if the parents live together for a continuous
period of 6 months.
The courts have become increasingly willing to make
shared residence orders. In D v D [2001] it was suggested
that shared residence order could be made where it
reflected the reality of the children’s lives. In subsequent
cases the interpretation of what constitutes ‘underling
reality’ has encompassed the fact that both parents retain
PR, as well as the most obvious one that children divide
their time between the parent’s households.

12. Contact Order
Definition: This is an order requiring the
person with whom a child lives, or is to live, to
allow the child to visit or stay with a person
named on the order, or for that person and
the child to have contact with each other.
Other forms of contact include writing letters,
making telephone calls or receiving
information on the child’s progress.

13. Contact Order
Contact orders can be made in favour of anyone,
not just parents or relatives, although under s.10
CA 1989, the consent of the parents or of the
court would generally be required before making
an application. Conditions may be attached to
contact orders and the court has the wide
discretion as to the nature of such conditions.
During contact visits, a parent who has PR can
exercise it more freely than at times when the
child is not with him, although he must still act
compatibly with any other court order relating to
the child.

14. Contact Order
The courts are usually reluctant to deprive a
parent of all contact with his child, even if there
has been a long break. For example. Re H
(Minors) (Access) 1992, the father had lost
contact with his children for three years, partly
owing to the mothers lack of co-operation and
partly because she had remarried and moved
away. The CA granted an order for a gradual
resumption of contact, with the position to be
reviewed in the near future.

15. Contact Order
Contact orders can be problematic where there is
background of domestic violence and a review of the law
followed in four conjoined appeals:
Re L, Re V, Re M, Re H (Contact: Domestic Violence [2000].
The approach of the courts is that although there is no
resumption (continuation) against contact in cases where
domestic violence was alleged, violence is a highly material
factor that the court is required to consider as part of the
balancing exercise required by the court’s duty to apply the
paramountcy principle and the welfare checklist.

16. Contact Order
A court hearing a contact application in which
allegations of domestic violence are made should
consider the conduct of each party towards the other
and towards the child, the effect on the child and
mother and the motivation of the father seeking
contact.
New guidance emphasises that any allegations of
domestic violence must be investigated and finding of
facts made and that the court should only make an
order for contact if the safety of both the child and the
parent with whom the child is living with can be
guaranteed.

17. Contact Order
Unless the child is at risk from the non
resident parent, the assumption that contact
is beneficial will override, and contact will be
ordered. The CA has emphasised that
imprisonment would be an appropriate
sanction in cases where there had been clear,
repeated and deliberate breaches of contact
orders. (B v S (Contempt: Imprisonement of
Mother) [2009].

18. Contact Order
Re M [2003] – over a long period, the mother had continued to
make allegations of sexual and physical abuse of the children by the
father, despite the court findings that they were unfounded. During
this time, she had made several promises to the court that she
would obey contact orders it made but had broken all of them.
Finally, the court ordered the LA to investigate. As a result of the
investigation, the LA applied for a care order which enabled them to
remove the children from the mother. Away from her influence, the
children rapidly established a satisfactory and enjoyable contact
with the father – so satisfactory that he applied for and was granted
a residence order.
This case highlights how contact can be denied by the resident
order even after a contact order has been made to the father. In
recent years, the High Court and Court of Appeal have been faced
with a spate of cases as such.

19. However, it is not possible to make a residence order
simply for the purpose of punishing a parent who is
preventing contract. Such an order can only be made if
it is in the best interests of the child to do so. Many
fathers who want contact are unable to accommodate
the child. Even if they are, it may not be the best
solution to remove the child from a mother against
whom the only complaint is that she will not permit
contact with the father.
Nevertheless, there have been a number of cases in
which the courts have ordered the transfer of residence
from one parent to another on the basis that the child
was being harmed by being denied a relationship with
the other parent ( Re S Transfer of Residence 2010)

20. Children and Adoptions Act 2006
Parliament accordingly passed this Act, which came
into force December 2008. It made provisions for:
(1) Contact activity directions/conditions – these
enable courts to direct parents to participate in
classes or counselling with the aim of promoting
contact. The activity may be designed to address
the hostility of a parent who is frustrating
contact, or the violence of a parent who is
seeking contact.

21. (2) Assistance from outside agencies – CAFCASS has been
given the task of monitoring compliance with contact
orders and changes have been made to the family
assistance order to enable it to play a greater role in
supporting families in conflict over contact.
(3) Improved enforcement – the legislation confers new
powers on the courts to enforce contact, for example,
by imposing an ‘unpaid work requirement’.
In addition, official policy is that litigation should be a
last resort. Parenting plans, mediation, and in court
conciliation have all been introduced to support
parents in making their own arrangements.

22. Activity
Complete the seminar questions