7.1 Introduction

Remember that in children's matters the hearing should not be adversarial and that formality should be tempered with humanity.

Definition of the issues and a chronology are essential for all hearings, including direction hearings.

7.2 The welfare checklist

Section 1 of the Children Act 1989 ('the Act') provides not only that the child's welfare shall be the court's paramount consideration when deciding any question concerning a child's upbringing, property or income from his or her property, but that when deciding whether to make section 8 or public law orders the court should have regard to the matters in section 1(3), now universally called the welfare checklist.

When giving judgment it is not necessary to go laboriously through the list; it is enough to make it clear that you have carefully considered it and to refer to such matters as you find particularly pertinent, but when considering your decision the list usefully points you to the factors you should consider in every case. If anything relevant occurs during the hearing, e.g. the behaviour of the parties or admissions made, include it in your judgment.

7.3 Applications for leave

Section 10 of the Act sets out the classes of person who do not need leave to apply for section 8 orders, or certain of them. A parent may make application for section 8 orders without leave, whether or not the parent has parental responsibility. Note that a former parent, after an adoption or freeing order is not a parent for this purpose. A person in whose favour there is a residence order does not need leave to seek a section 8 order. Generally, applications for leave are made to the district judge but you may find that an applicant for an ex parte order is a person who needs the court's leave to apply. Be very cautious about giving leave ex parte, as you should be about any ex parte applications. It is usually preferable to abridge time and fix an early inter partes hearing, when the application for leave may be heard, together with the application itself if leave is granted. Check section 10(9) for the considerations when deciding whether to give leave.

7.4 Section 8 order

It has been said that section 8 orders are designed to provide practical solutions to questions arising, with an emphasis, not on the custodial or non-custodial status of the parent, but upon the encouragement of parents to remain involved in a child's life without unnecessary constraints. Three principles are set out in section 1 of the Act to guide courts in making their decisions.

1. First, the child's welfare shall be the paramount consideration.
2. Secondly, the court should not make an order under the Act unless it considers that to do so would be better for the child than making no order at all.
3. Thirdly, the court should have regard to the general principle that delay in determining a question with respect to the upbringing of a child is likely to prejudice their welfare.

Section 11 makes detailed provisions for the contents and consequences of any particular order made under section 8 and directions which should or may be given to make it effective.

The section 8 orders which can be made by a judge are laid out below:

1. A 'contact order', which is 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. It is the right of the child, not the adult.

Regard should be had to Re H (Contact: Domestic Violence) [1998] 2 FLR 42; Re M (Contact Violent Parent) [1999] 2 FLR 321; and Re LVMH (Contact: Domestic Violence) [2000] 2 FLR 334. The full text of the psychiatric report commissioned by the Court of Appeal is to be found at [2000] Fam Law 615. When making an order for contact, follow the wording of the statute, e.g. the mother is to make [the child] available for contact at a specified time and place. If the duty is not clearly set out, subsequent enforcement proceedings will be difficult. Further, enforcement proceedings cannot be initiated if no penal notice has been endorsed upon the order and served upon the parent who has residence.

If you are faced with an argument that a parent is 'implaccably hostile' to an order for contact, you will need to discover the real reason for this hostility. Does that parent have good reason for the hostility? See Re P (Contact: Discretion) [1998] 2 FLR 696, 703G.

A 'prohibited steps order', which prohibits a named person from taking a specified step which a parent could take in exercising parental responsibility without the consent of the court.

The person named need not be a parent or have parental responsibility but the step prohibited must be a parental step. Injunctions remain a useful remedy for the protection of children.

A 'residence order', which settles the arrangements to be made as to the person(s) with whom a child is to live.

It is usually undesirable to make a residence order ex parte when only one side of usually a disputed story has been heard. (The person with a residence order may then be able to consent to steps in the child's upbringing, medical treatment, blood tests and education unilaterally.)

Consider whether another order will be appropriate until there can be an inter partes hearing, e.g. a prohibited steps order preventing the removal of the child from where he/she is. Consider abridging the time for service to ensure the earliest practical inter partes hearing. The Act does not provide for an 'interim' residence order but it is proper to provide that the order continue until a certain date, e.g. the next or the 'full' hearing.

Consider in this context:

a) shared residence (section 11 (4))
b) directions/conditions under section 11(7)
c) shared time
d) session of supervised contact

Note the decision in Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124. Compare the decision in Re D (Residence: Imposition of Conditions) [1994] 1 FLR 272. Section 11(7) cannot be used to regulate where the holder of a residence order should live or behave.

4. A 'specific issue' order, which gives directions for the determination of an issue which has arisen or may arise in connection with any aspect of parental responsibility, for example change of name, medical treatment or education.

Section 8 orders may have conditions or directions attached. They may be mandatory; e.g. providing that the child be handed over at such time and place. They are orders which may have a penal notice attached and be personally served.

A residence order discharges a care order - see section 91(1). No other section 8 order may be made in respect of a child in care. Section 8 orders may be made at any time until the child's 18th birthday but only exceptionally after 16. Section 8 orders may be made on application at the court's own motion in any family proceeding. Always consider the child's wishes, however young. With older children, beware of making orders that will be thwarted by the child's opposition.

7.5 Parental responsibility orders

Section 3 defines parental responsibility.

Section 4 provides:

'1. Where a child's father and mother were not married to each other at the time of his birth:

a) the court may, on the application of the father, order that he shall have parental responsibility for the child; or
b) the father and mother may by agreement ('a parental responsibility agreement') provide for the father to have parental responsibility for the child.' In Re G (A Minor) (Parental Responsibility Order) [1994]1 FLR 504, Balcombe LJ held that the court would have to take into account a number of factors of which the following will be material (but not exhaustive):

1. The degree of commitment which the father has shown towards the child;
2. The degree of attachment which exists between the father and the child;
3. The reasons of the father applying for the order.

In Re H (Parental Responsibility) [1998] 1 FLR 855, Butler-Sloss LJ held that these three requirements are the starting-point for the making of an order but they were not the only relevant factors in considering a parental responsibility order and were not exhaustive, as such an approach would be contrary to section 1 of the Children Act. The court has the duty in each case to take into account all the relevant circumstances and to decide whether the order is in the best interests of the child.

7.5.1 Discharging parental responsibility. Note the obverse tests and see Re P (Terminating Parental Responsibility) [1995] 1 FLR 1084.

7.5.2 If you make an interim residence order to a father who does not have parental responsibility, you will, by virtue of section 12(1) of the Children Act 1989, give him a freestanding order; you may not intend to do so and will have to consider whether a residence order is actually necessary.

7.6 Public law applications

Public law applications are principally applications by a local authority for a care or supervision order in relation to a child and are the subject matter of Part IV of the Act. Generally, applications commence in the Family Proceedings Court, and are transferred to the county court by reason of complexity, gravity or other special reason. The transfer will have been to a county court care centre, and thus will be listed before a judge nominated to hear public law matters. If a private law application relates to a child who is also the subject of a public law application it should, in a perfect world, have been transferred to a care centre, to meet the public law application, transferred up if need be. If that has not happened, the most prudent course is to confine yourself to such decision as may be necessary to meet immediate need without prejudicing the outcome of the public law proceedings, and to ensure by transfer that one court is seized of all issues as soon as practicable.

7.7 Seeing the child (after the conclusion of the evidence and before speeches)

See paragraph 4.13.

7.8 Mediation, practice and procedure

Many courts have mediation (sometimes called conciliation) schemes, others refer disputes to out of court mediation. In court, mediations are mainly conducted by the district judges, in co-operation with the court welfare officer. Familiarise yourself with the routine at the court where you are sitting. The application before you may well be suitable to adjourn to a mediation appointment where the parties have a chance to resolve their differences quickly without the distress of a contested hearing and the damage and delay that can result. Remember also that if there has been a mediation appointment which did not resolve the issue, what took place was entirely without prejudice and cannot be referred to when you are hearing the application.

7.9 Representation of children

In disputes relating to a child it is not normally appropriate to impose upon the child the burden of being a party to the proceedings. Occasionally it is, for example when the battle between parents has become such that the interests of the child are at risk of being ignored if the child is not represented, or where the court's need for information goes beyond that which can be obtained by a section 7 report, and an expert, usually a consultant child psychiatrist, is to be instructed, and you think it right that the information/expert report is obtained on the child's behalf rather than by a protagonist. In such an instance, the child should be represented by a children's guardian. Whether in the High Court or in the county court the procedure is to join the child as a party and appoint a named person children's guardian. The Official Solicitor may accept appointment, but normally in High Court cases. In the county court, the Official Solicitor will rarely accept an appointment. If you are dealing with a county court case in which the appointment of the Official Solicitor is being considered, you should also consider whether the case should be transferred to the High Court, to be heard by a High Court judge.

The issue of the separate representation of children is something about which the courts should be increasingly aware, in particular having regard to the European Convention on Human Rights.

In matters proceeding in the Principal Registry the senior court welfare officer (CWO) is willing to nominate a reporter to act as guardian in county court cases.

A child may seek leave to initiate proceedings. If such an application is made to you, refer it to a High Court judge by transferring the application for leave to the High Court. On each circuit there should be a means of placing the application before a High Court judge without delay via the Family Division liaison judge. If leave is granted the judge will determine whether the child may act without a guardian ad litem, and whether the application should come back to the county court for determination.

By Rule 9(2)(A), a child may act without a children's guardian with leave of the court or if a solicitor, who considers the child is capable of giving instructions in relation to the proceedings, accepts instructions so to act. It has been held that the solicitor's decision to accept instructions must be carefully made, and made by a practitioner who understands fully the implications of a child acting without the protection of a children's guardian. It is submitted that it would be unusual for a solicitor who is not an experienced member of the child care panel to decide to accept instructions from a child. In any event it would be rare indeed for a child who is not a teenager of some maturity and of at least normal intelligence to participate in proceedings without a guardian.

7.10 Children and family reporters

Children and family reporters (previously court welfare officers) are the 'eyes and ears' of the court.

In ordering a report it may be necessary to identify the issue(s) which the court wants to be dealt with, e.g. an order to visit the homes of each party and/or to meet with the relevant persons in the life of the child as well as contacting school, the GP, the contact centre or psychotherapist - as appropriate. If in your judgment you differ from the recommendation you must set out your reason. It is generally not appropriate to order a report where there is already a social worker involved in the preparation of reports, or where the Official Solicitor is involved in the case.

7.11 Contact centres

In some cases contact at a contact centre may be the required order. Before making such an order it is important to ascertain:

1. Whether the named contact centre can accept the order and make the relevant arrangements;
2. Whether the contact centre offers supervised contact, supported contact or just a meeting place.

The National Association of Contact Centres prefers there to be a month between the making of an order and the date of the first contact so that the centre can acquire the necessary information about parents and children.

Most contact centres are run by volunteers. Many contact centres are unwilling to give information about the quality, regularity and punctuality of contact. However, most contact centres will give this information to the reporter.

If an order is made on the basis that there is to be no contact unless the visiting parent is to be drink or drug free, this must be set out in the order, plus an order that any breach is to be notified to the court via the reporter forthwith. This is because the contact centre regard themselves as independent and do not want either to be called as witnesses or for their clients to feel that they are anything but independent.

7.12 Orders involving the local authority

The local authority may become involved in a private law case if the court makes an order under sections 7, 37 or 16 of the Children Act 1989.

7.12.1 Section 7

A court may ask a children and family reporter or a local authority to arrange for a report to the court on such matters relating to the welfare of the child as are required to be dealt with in the report. The circumstances in which a local authority should be asked to report will usually be governed by a local protocol.

7.12.2 Section 37

The use of section 37 is the only way that a non-nominated judge may deal with a public law matter.

Nominated and designated care judges have received specific training in public law. If you are in any doubt about the right course, adjourn briefly to discuss the application, over the telephone if need be, with the designated care judge for the area or, if not available, with a nominated care judge. Do endeavour to do this if you are considering making an interim care order. If you are not sitting in a care centre, transfer the proceedings to the appropriate care centre for the next hearing.

Where, in any family proceedings, a question arises with respect to the welfare of any child so that it appears that it may be appropriate for a care or supervision order to be made, the court may direct the appropriate authority to undertake an investigation of the child's circumstances.

However, under section 31, a care or supervision order may only be made if it is likely that the child concerned is suffering or is likely to suffer significant harm and 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.

Thus, generally a court will only order a section 37 report if it considers that a care order or supervision order may be necessary for the welfare of the child, i.e. because the 'threshold criteria' referred to in section 31 are likely to be proved.

In all other cases, a section 7 report will be ordered. Whether it is ordered from the local authority or the Court Welfare Officer will depend on the facts of each case. Usually, a section 7 report is ordered from a Court Welfare Officer.

7.12.3 Section 16 - Family Assistance Order.

This section enables a court to make an order requiring a children and family reporter or an officer from a local authority to be made available to advise, assist (and where appropriate) befriend any person named in the order provided that the circumstances of the case are found to be exceptional and the consent of every person to be named in the order (other than the child) has been obtained.

No Family Assistance Order can be for more than six months and it dates from the making of the order. Before making this order it is advisable, so as to avoid losing time after the order is made, first to require the reporter or local authority officer to attend court to ascertain:

1. That a reporter has been assigned to the case; and
2. That the order can and will be funded.

7.13 Leave to remove from the jurisdiction

These cases are difficult and important. They always require close investigation and the taking of great care. If the proposal is to remove the child to a country which is not a signatory to the Hague Convention, then whether the application is for temporary or permanent removal, the case must be transferred to the High Court.

Applications for leave may be made either under section 13 or for a specific issue order under section 8. The application is dealt with in the same way whichever route is applicable.

All applications are subject to the tests in section 1 of the Act. This note is principally concerned with leave to remove permanently to a Convention country.

In deciding any such case, it will be wise to be familiar with the Court of Appeal case of P v. P, 13 February 2001 (transcript no. 2000/3457).

There are two key principles:

1. If the proposed move is a reasonable one permission should only be refused;
2. If it is clearly shown that the interests of the child concerned and the interests of the parent with whom the child resides are incompatible.

Sometimes you will encounter a case where proposals cannot be fully fleshed out because the host country will not progress matters without leave having first been obtained. In those circumstances guidance can be obtained from the judgment of Hale J in Re M (Leave to remove child from the jurisdiction)[1999] 2 FLR 334. This approach will always be seen as the exception. Generally, detailed arrangements should be put before the court for its consideration.

When considering incompatibility of interests particular importance will usually attach to:

1. The effect on relationships with those left behind; and
2. Conditions in the host country. The first will often give rise to difficult exercise of discretion but refusal of permission on this ground alone is likely to be unusual.

If leave is to be granted, consideration should be given to the imposition of conditions to secure compliance with any contact order; such conditions might include:

1. An undertaking to return the child if called upon to do so;
2. A financial bond to guarantee compliance;
3. The obtaining of a 'mirror order' in the host jurisdiction. Such an order is compliant with the ECHR. Temporary removal to a convention country is likely to be less controversial. However, risks of not returning the child may justify the imposition of conditions and, in some cases, outright refusal.

7.14 Hague Convention type cases

Article 16 of the Child Abduction and Custody Act 1985 provides:

'After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.'

Thus where a court becomes seized of a matter relating to a child who had previously lived abroad and so may be a Convention case, it should take the following steps:

1. Arrange for the application to be transferred to a High Court judge forthwith (if necessary make the arrangements yourself via the Clerk of the Rules, Family Division 020 7936 6549).
2. Ring up the Child and Abduction Unit of the Official Solicitor 020 7911 7047/7045 (Fax 020 7911 7248) to ascertain whether they have notice of the child in your case and send a copy of your order.
3. Make a 'holding' order for the shortest possible time.

See also The Family Court Practice 1998 at pages 377Ð378.

7.15 Official Solicitor

The Practice Direction dated December 1998 as to appointment of the Official Solicitor appears in [1999] FLR 310 at 313.