Vous êtes sur la page 1sur 8

1.

INTRO
The parties must first attempt to resolve the issue between
themselves. If this fails then the parties can seek a section 8 order.
There are 3 section 8 orders: Child Arrangement order (covers living
and contact), Prohibited Steps Order, and Specific Issue Order. These
orders can be made in any family proceedings subject to section 8(3).
The orders can last for a specific duration or until a further order is
made (Section 11(7)(c)). Finally, the orders can only be made for
children under the age of 18 (Section 9(6).
2.
WHAT ORDER CAN BE MADE
If a child arrangement order is made then as per section 13(1)
(a)and(b) the childs surname cannot be changed and the child cannot
be removed from the jurisdiction without written consent from all with
PR or without the courts permission.
A Shared residence order can be made where it reflects the reality of
the childs life (D v D).
A contact order can be made and various conditions can be attached to
it (Section 11(7)).
A Prohibited steps order stops the party from doing something in
relation to the child.
A Specific issue order addresses a specific question. A SIO can be
made in relation to the childs school (H-D) or in relation to a childs
religious upbringing (Re J).
3.
WHO CAN ASK FOR THE ORDER
Section 10 provides that either an entitled applicant can petition the
court for a section 8 order or a non-entitled applicant can.
Section 10(4)(a) provides that parents are entitled applicants, which
means that they do not need the courts permission to seek a section 8
order. M v C states that reference to parents includes both natural
parents, regardless of parental responsibility.
It is important to note that the court can black a party from making
section 8 orders under section 91(14). This is in order to protect the
parents and the child from vexatious litigation.
4.
THE NO ORDER PRINCIPLE
Section 1(5) provides that the courts will not make an order unless
they are satisfied that making an order is better than not making one
at all. This creates a low threshold for the claimant to cross. (Easily

satisfied by demonstrating why situation is hectic and how it would be


better if order was made)
5.
PRESUMPTION IN FAVOUR OF PARENTAL INVOLVEMENT
Section 1(2A) establishes a presumption that it is better to have a
parent involved. Section 1(2B) provides that involved, includes both
direct and indirect involvement.
Re B demonstrates the strength of this presumption, in that a man
who was bizzare and eccentric and capable of distressing his child, did
not rebut the presumption.
Re L;V;M;H provides that domestic violence itself will not rebut the
presumption, however abuse likely will.
AL v JH provides that the presumption will only be rebutted in
exceptional circumstances.
6.
WHEN THE WELFARE CHECKLIST IS APPLIED
Section 1(1) provides that when considering the upbringing of the child
the paramount consideration is the welfare of the child. Section 1(4)
provides that where there is a contested section 8 order the court
must consider the welfare checklist set out in Section 1(3). Re B
provides that the welfare of the child is paramount even overriding the
presumption in favour of parental involvement.
7.
APPLYING THE WELFARE CHECKLIST
Section 1(3)(a) feelings and wishes of child: Williamson v
Williamson where the child decides by their feet. And must consider
Re P where the child is older and of maturity and understanding so
that they can choose what is best for themselves.
Section 1(3)(b) Physical, Educational and Emotional Needs: Re S
Mother is best principle NO longer applies. C v C Children should not
be separated from their siblings. A v B and C sexual orientation is
irrelevant.
Section 1(3)(c) Effect of change: Re B there must be considerable
reason for disturbing the status quo.
Section 1(3)(d) Age, Sex, Background, and Other Factors: Harringey
LBC suggests that Race, Religion, and Culture are important
considerations, however they do not have a separate spot on the
checklist. Additionally, the older the child is the more likely they are
able to choose their religion. Re S the general principle with religion is
that children will be able to choose when they get older, therefore

circumcision would restrict that choice, so the circumcision must wait


until the child chooses their religion.
Section 1(3)(e) Considering Any Harm Suffered Or Risk Of Suffering: Re
J (Saudi Case) harm does not only refer to physical violence.
Therefore, must consider ALL harm which child is at risk of suffering. It
is unclear whether witnessing domestic violence at home will cause
harm, there are contrasting judgements. Re H suggests that domestic
violence at home will not necessarily cause harm, while Re F suggests
that witnessing domestic violence at home will cause harm. Finally,
abuse towards the child will be considered harm (Re L; V; M; H).
Section 1(3)(f) How Capable is Each Parent of Meeting Childs Needs:
Re P courts recognize that wealth is different from happiness.
8.
APPROACH TO DOMESTIC RELOCATION
Re E provides that the courts will only restrict a persons freedom of
movement in exceptional circumstances. This was the origin of the
exceptional circumstances test.
Re S (No 2) furthered this test. It provided that the freedom of
movement of a party that has a Child Arrangement Order for living in
their favour, will only be restricted in exceptional circumstances.
Re F criticized the exceptional circumstances test. However, felt
bound to apply it. Suggested that the current approach is to apply the
welfare checklist through a prism considering whether the
circumstances are exceptional.
9.
APPROACH TO INTERNATIONAL RELOCATION CASES
Section 13(1)(b) provides that a party wishing to leave the
jurisdiction for more than 1 month must seek permission where there is
a child arrangement order.
Payne v Payne set out factors for the courts to consider in
international relocation cases. This case was heavily criticized for
placing too much weight on the effect of a refusal on the party wishing
to leave the jurisdiction. Thorpe LJ set out the following factors:
[1] Whether the motive for relocating is genuine.
[2] Whether the application is realistic.
IF BOTH SATISFIED THEN YOU MOVE TO FURTHER CONSIDERATIONS IF
NOT SATISFIED THEN ORDER IS DENIED
[1] Whether the motive for opposing a relocation is genuine.
[2] Effect of relocation on the relationship between the child and the
party left behind

[3] Whether this would be offset by a family relationship where they


would be relocating to.
[4] Effect of a refusal on the party seeking to leave.
[5] That the paramount consideration is the childs welfare.
Butler Sloss LJ set out further factors to be considered:
[1] Reinforced that the welfare of the child is paramount.
[2] Where an application is made by the party with a CAO for living,
there will be great weight placed on this.
[3] The court should scrutinize the motive to ensure that it is genuine.
[4] Effect on the child of not having contact with the party left behind.
[5] Opportunities for contact between the child and the party left
behind.
K v K considered how the court should apply the factors set out in
Payne v Payne. It suggested that the factors form a part of a holistic
approach to the welfare analysis. Additionally, K v K stated that it the
factors can be departed from.
Re F clarified that the factors can apply in all international relocation
cases, not just those where there is a shared living arrangement.

Prior to seeking a section 8 order the parties must attempt to resolve


the issue in between themselves, however if this fails, they may seek a
section 8 order for child arrangement order for living or contact, or a
prohibited steps order, or a specific issue order. These orders can be
made in any family proceedings as per s8(3). They can be made for
any specific duration or until next order s11(7)(c). Finally, they can
only be made for children under 18 s9(6).
A child arrangement order is made for living arrangement or for
contact. Where a CAO is made subject to section 13(1)(a)and(b) the
parents cannot change the surname of the child, nor can they leave
the jurisdiction for more than 1 month without the consent of all those
with parental responsibility or without the courts consent. An order for
a shared living arrangement will be made where it reflects the reality
of the childs life (D v D). Where a contact order is made, it can
stipulate specific conditions (s11(7)).
A SPI order can be made for education; H-D. or for religious upbringing
of child; Re J.
Section 10(4)(a) provides that parents of the child are entitled
applicants. Section 10 provides that applicants are split into two
categories: entitled applicants, and those that are not entitled that
must seek permission. M v C defines parents as meaning all natural
parents, irrespective of parental responsibility. It is important to
consider whether the courts have previously made an order under
s91(14) restricting future applications. This is done to protect the
parties from vexatious litigation.
Section 1(5) establishes the no order principle. This sets a low
threshold for the applicant, in which the applicant must prove that it is
better to grant an order than not granting an order. Generally this can
be demonstrated by showing that the family situation is hectic without
an order.
Section 1(2A), provides a presumption in favour of parental
involvement. Section 1(2B), defines involvement broadly, as it
includes both direct and indirect involvement. Re B demonstrates that
even where the father acts bizzarely and is eccentric and his behaviour
is capable of distressing the child, it will not be sufficient to rebut this
presumption. Re L; V; M; H provides that domestic violence will not
necessarily rebut the presumption, however abuse towards the child
almost most definitiely will. Finally, AL v JH suggests that the
presumption will only be rebutted in exceptional circumstances.

Section 1(1) provides that when making an order in relation to the


upbringing of the child, the paramount consideration must be the
childs welfare. Section 1(4) provides that where there is a contested
section 8 order, the welfare factors in section 1(3) must be considered.
Re B states that the welfare of the child overrides the presumption in
favour of parental involvement.
Section 1(3)(a) provides that the court must consider the feelings and
wishes of the child. Re P suggested that the courts should consider
what the child thinks best when the child is of age and maturity.
Williamson v Williamson demonstrated that the courts will take into
account when a child chooses with his feet.
Section 1(3)(b) provides that the court must consider the childs
physical, education, and emotional needs. Re S provides that mother
is always best no longer applies. C v C provides that it is often not in
the best interest of the child to separate them from their siblings.
Finally, A v B and C provides that the sexual orientation of the parent
is not a relevant factor.
Section 1(3)(c) provides that the court must consider the effect of
change on the child. Re B provides that there must be substantial
justificiation for changing the status quo.
Section 1(3)(d) provides that the court must consider the age sex and
background of the child. Harringey LBC states that race, religion and
culture are important factors to consider, despite not being set out in
the welfare checklist. Additionally, it suggests that the older the child
is, the more likely that the court will allow them to choose their
religious upbringing. However, Re S suggests that where there is a
dispute in relation to religious upbringing, the child should be allowed
to choose, when they are older enough. In addition, a circumcision
should not be done until the child is old enough to determine whether
they want to have one, because that may affect their freedom to
choose their religion.
Section 1(3)(f) provides that the courts must consider harm suffered, or
possibility of suffering harm. Re J (Saudi Case) demonstrates that
the court must consider all possible types of harm, not limited to
physical harm. The courts are inconsistent as to whether witnessing
domestic violence at home will cause harm. Re F suggests that it will,
while Re H suggests that it will not. However, it is clear that abuse to
the child will be considered as harm; Re L; V; M; H.
Section 1(3)(e) provides that the courts must consider the parents
ability to care for the child. Re P drew a distinction between wealth

and happiness, as wealth is not indicative of which parent will be


better able to care for the child.
DOMESTIC RELOCATION: Re E provides the basis for the exceptional
circumstances test. It stated that the court will not restrict a parents
freedom of movement unless it was in exceptional circumstances. This
was furthered in Re S No2 where the court provided that where there
is a child arrangement order for living arrangements in favour of a
parent, the court will not restrict their freedom of movement, unless
there were exceptional cirucmstances. Finally, Re F criticized the
exceptional circumstances test, however felt bound to follow it. It
suggested that the current approach is to consider the welfare of the
children, through a prism which considers whether there are
exceptional circumstances.
INTERNATIONAL RELOCATION: Payne v Payne sets out factors for the
court to consider where a party wants to take a child out of the
jurisdiction for longer than 1 month. These factors have been highly
criticized for placing to much emphasis on the effect of a refusal on the
party seeking to leave the jurisdiction. Thorpe LJ provided the
following: (1) the court must consider whether the motive of the
application is genuine; (2) The court must consider whether the
application is realistic. If these requirements are not satisfied, then the
parties application will fail. However where these requirements are
satisfied the following considerations must be made.
[1] Motive of the opposing party
[2] Effect on the relationship between the party left behind and the
child
[3] whether this effect will be offset by the childs relationship with the
family where they are moving
[4] effect of refusal on the application
[5] that the paramount consideration is the welfare of the child
Butler Sloss LJ provides further considerations:
[1] re states that the paramount consideration is the welfare of the
child
[2] suggests that where the application is made by a party that has a
CAO for living, this will hold significant weight
[3] court must scrutinize the motive to be sure that it is genuine
[4] court must consider the effect on the child of no contact with the
party left behind
[5] finaly, the court must consider the opportunities for contact
K v K clarifies the approach to the factors set out in Payne v Payne. It
suggests that they form part of a holistic approach to the welfare

analysis. Additionally, it provides that the factors may be departed


from.
Re F confirms the approach set out in K v K and states that the Payne
factors apply in all international relocation cases, not just those of
shared living arrangements.