Frequently Asked Questions
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What does the court consider when making an order under the Children Act 1989?
Under The Children Act 1989 the welfare of the child is the paramount consideration of the court when looking at the child’s upbringing or the administration of a child’s property or income. In reaching many decisions the court has to consider the welfare checklist set out below:
a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
b) their physical, emotional and educational needs
c) the likely effect on them of any change of circumstances
d) their age, sex, background and any characteristics of them which the court considers relevant
e) any harm which they have suffered or is at risk of suffering
f) how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
g) the range of powers available to the court under the Act in the proceedings in question.
One of the underlying principles of the Children Act is that “the court shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”. A second very important principle is that delay is presumed to be harmful for a child.
What is ‘custody’ and ‘access’?
‘Custody’ and ‘access’ are now outdated legal terms. The court will make a child arrangement order that will :
- outline where the children will live
- how much time they will spend with each parent
- how the children will be financially supported
- and when and what other type of contact will take place. e.g. phone calls, holidays
You are encouraged to agree a parenting plan if you want a record of your agreement and you can make it legally binding through a consent order.
What are prohibited steps and specific issue orders?
A prohibited steps order is designed to prevent a parent doing a specific thing relevant to their child without the consent of the court. Such an order can be made in conjunction with a contact or residence order. Frequently, it is used where a parent is threatening to take the child out of the jurisdiction of the court.
A specific issue order allows the court to determine an issue usually relating to some aspect of parental responsibility e.g. where there are differences as to schooling, medical treatment, changing a child’s surname and other specific aspects of a child’s upbringing. As with prohibited steps, the order can be made in conjunction with residence or contact orders.
What is a contact order?
A contact order is now called a ‘child arrangement order’, or ‘consent order’ if you agree.
A child arrangement order requires the person with whom a child lives, to allow the child to visit or stay with the person named in the order or to have contact in some other form.
Contact can be direct (visiting/staying) or indirect (letter/cards/presents).
Contact with their natural parents is regarded as a fundamental right of the child and there have to be strong reasons for a court to refuse contact.
What is a residence order?
A residence order has been replaced with the child arrangements order. The child arrangements order sets out where children will live.
What is shared residence?
A child arrangement order will set out where the children will live. This may be shared between two people with parental responsibility, so the children in effect have more than one place they consider to be their home and their time is shared between the two.