Children and their welfare

 

 
These Family Law pages were originally prepared by the Law Department at St. Brendan's Sixth Form College.  They are no longer being updated and no responsibility is accepted for them by St. Brendan's College or LawTeacher.net
This Chapter was last updated on 5 January 2001

The Children Act 1989 was the result of a comprehensive review of the law as it affected children, and now encompasses almost the whole of the civil law in that area with the exception of that which relates to adoption or education. It largely replaced a variety of earlier statutes, responded to public concern over child abuse (which in a few well-publicised cases had led to the child's death, and in others to the removal of children from their homes on doubtful evidence), and acknowledged the growing emphasis on children's rights as set out in the Convention on the Rights of the Child.

In essence, the Act instructs the courts in cases concerning the upbringing of children to ask themselves three questions:

Are there "family proceedings" before the court?


What orders are available to the court in the circumstances?


Should the court make an order, and if so, in what terms?

The Act then provides guidance as to the correct answers to these questions. The main principles guiding the courts in their dealings with children (which for this purpose, according to s.105(1), includes anyone under 18) are set out in Part I of the Act, and in s.1 in particular.

Children Act 1989 s.1
(1) When a court determines any question with respect to (a) the upbringing of a child, or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding),
(b) his physical, emotional and educational needs,
(c) the likely effect on him of any change in his circumstances,
(d) his age, sex, background and any characteristics of his which the court considers relevant,
(e) any harm which he has suffered or is at risk of suffering,
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs,
(g) the range of powers available to the court under this Act in the proceedings in question.

(4) The circumstances are that (a) the court is considering whether to make, vary or discharge a section 8 order [that is, a residence, contact, specific issue or prohibited steps order], and the making, variation or discharge of the order is opposed by any party to the proceedings, or (b) the court is considering whether to make, vary or discharge an order under Part IV [that is, a care or supervision order or similar].

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it 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.


The child's welfare is thus the "paramount consideration" in most cases concerning the child's upbringing, just as it has always been the "golden thread" running through the wardship jurisdiction. This principle governs the making of care and supervision orders, the various "section 8" orders such as residence orders, contact orders, specific issue orders and prohibited steps orders, and a number of other incidental matters.

Lee v Lee (1983) 127 SJ 696, CA
An unmarried couple M and W were joint tenants of a council house, but their relationship became strained. While W was in hospital, her daughter D by a previous relationship went to live with her grandmother, while their son S stayed in the family home with M. When W left hospital she took S to live with a friend but sought an ouster order against M so that she could return to the family home where there would be room for D as well. The Court of Appeal said W should have the order she sought: in cases such as this all relevant factors (including the children's welfare) were to be taken into account, and it would be just and reasonable to make the order.


Wilde v Wilde [1988] 2 FLR 83, CA
H and W were granted a decree absolute but proceedings for ancillary relief were still pending. W sought an ouster so that she could remain in the family home with the children, and the Court of Appeal said the judge had discretion to grant such an order where it was appropriate. The fact of dissolution did not exclude the courts' power to intervene in the interests of the children.


Re F [1993] 3 All ER 596, CA
A putative father F sought a parental responsibility order in respect of a child C and applied for an order for blood tests to prove his paternity. The judge refused and the Court of Appeal upheld the refusal: the child was being brought up by its mother W and her husband H, and it was very unlikely that a parental responsibility order would be granted even if F's natural paternity were proved. There could be no benefit to the child in granting the order sought, and in determining questions of parental responsibility the child's interests are paramount.


R v Cambridge Health Authority ex p B (No.2) [1995] 2 All ER 129, CA
A ten-year-old girl B was seriously ill with leukaemia, and her father sought mandamus to require the health authority to finance experimental treatment that might save her life. The Court of Appeal quashed an order of certiorari granted by Laws J, but requested the press to report the decision in a way that would make it impossible for anyone (even the girl herself) to recognise her identity as the subject of the case.


O v L (Blood tests) [1995] 2 FLR 930, CA
Following separation, H sought an order for contact with their three-year-old daughter but W (now for the first time) claimed D had been fathered by another man and sought an order for blood tests to support her claim. The judge refused such an order and W's appeal failed: the relationship between H and D was good, and continued contact would be in D's best interests regardless of any genetic link.


Re B (Change of surname) [1996] 1 FLR 791, CA
Following her separation from M and her marriage to H, a woman W sought leave to change the names of her children BB, then aged 16, 14 and 12. The children themselves wished to change: they had a poor relationship with their father M and used his name only for official purposes; they were generally called by H's name at school. The judge refused leave and W's appeal failed: the Court of Appeal said it would not be in BB's interests, whatever their wishes, to sever their remaining links with their father.


Re H (Paternity: blood test) [1996] 4 All ER 28, CA
A man F sought an order for blood tests, hoping to show he was the natural father of W's child. W opposed the order and claimed the child had been conceived by her husband H, who had had a (possibly unsuccessful) vasectomy. It was accepted that the child would be brought up by H and W in any event. The Court of Appeal affirmed the judge's order for tests: the child's best interests in later years would be served by his knowing his true paternity.


Re C [1996] 2 FLR 43, Brown P
A three-month-old baby C had suffered from meningitis; she now had severe brain damage and no hope of recovery. The judge granted leave to discontinue artificial ventilation, since all relevant parties were agreed that it was no longer in C's best interests to sustain her body functions.


Re T (Wardship: medical treatment) [1997] 1 All ER 906, CA
A baby T had been born with a serious liver defect and a short life expectancy; one operation had already failed and the doctors advised a transplant. T's mother M refused to consent and took T abroad; the local authority were granted an order allowing the operation and requiring M to bring T back into the country. The Court of Appeal reversed the order: the question was T's welfare rather than M's reasonableness, and it would not be in T's best interests to make an order to which M was so strongly opposed.


Re A (Children) (2000) Times 10/10/00, CA
"Siamese twins" Jodie and Mary were joined in such a way that Jodie's heart and lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would die in three to six months - or possibly slightly more - if nothing was done. Doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a fairly "normal" life but causing the immediate death of Mary. The twins' parents opposed the application for religious reasons. The Court of Appeal affirmed Johnson J and gave leave for the operation to proceed. Ward LJ referred to s.1(1) of the Children Act 1989 and the requirement that the child's welfare be the paramount consideration. In the instant case, it was clear that Jodie's welfare requried that the twins be separated, while Mary's welfare (there being no doubt that she was a separate human being whose life was valuable in spite of her poor brain function) required that they should not. Faced with this logical dilemma to which Parliament had provided no solution, the judge concluded that the only solution was to choose the lesser of two evils and find the least detrimental alternative. The parents' wishes were an important consideration, but the children's welfare was paramount.


The "welfare principle" is not paramount, however, where the child's upbringing is merely incidental to some other dispute: in such cases the child's welfare is merely one among a number of considerations, none of which necessarily outweighs any other. Adoption disputes are of particular relevance in this context, and disputes relating to maintenance after divorce are also outside the scope of s.1; even the Child Support Agency is not governed by the welfare principle.

S v S (otherwise McC) [1970] 3 All ER 107, HL
A man H alleged that W's child was the result of her adultery with a third party M, and sought blood tests to demonstrate M's duty to provide financial support for the child. The House of Lords affirmed an order for blood tests to be carried out (on the child inter alia); in such a situation the child's welfare is relevant but not paramount, and the court should not be deterred from ordering tests simply because the result might possibly be to the child's disadvantage.


Re X (Wardship: jurisdiction) [1975] 1 All ER 697, CA
An author wrote a book attacking the character of F, the father of a highly-strung 14-year-old girl X. X's stepfather sought to restrain publication of the book because of its likely effect on X, but the Court of Appeal lifted the judge's order to that effect. The right of free speech is at least as important as the welfare of the child.


Richards v Richards [1983] 2 All ER 807, HL
A woman W moved out of the matrimonial home and sought a divorce; she then applied for an ouster order under the Matrimonial Homes Act 1983 so that she could return to be with the children. The judge granted such an order and H's appeal was dismissed even though there was no substantial complaint as to his behaviour. H's further appeal to the House of Lords succeeded: the House said the welfare of children is not paramount in a dispute such as this. [In fact the matter was resolved by a private agreement that the children would remain in the matrimonial home, with W during the week and with H at weekends.]


Re S (Wardship: police investigation) [1987] 3 All ER 1076, Booth J
Evidence given in wardship proceedings indicated sexual abuse, and the police sought access to the local authority's files notwithstanding the general rule that details of such proceedings cannot be made public. Granting the access sought, the judge said that where the protection of the ward conflicts with the public interest in preventing crime, the latter usually prevails.


Re W (Restrictions on publication) [1992] 1 All ER 794, Times 13/8/91, CA
A local authority arranged for a 15-year-old boy to be fostered by two homosexual men. A newspaper proposed to publish an article discussing this decision, and the authority sought an injunction against publication. The judge granted an injunction, but this was lifted on appeal except in respect of identifying details: this was a matter of great public interest and concern, on which the newspaper should be allowed to comment.


Re A & W (Residence order) [1992] 3 All ER 872, Times 15/5/92, CA
A foster mother sought leave under s.10(9) of the Children Act 1989 to apply for a residence order in her favour, and the judge decided it would be in the child's interests to grant leave. Revoking leave, Balcombe LJ said the Act made it clear that in this instance the child's welfare is not the overriding consideration, and that (for example) the wishes of the child's parents must be taken into account.


The meaning of the principle
According to Hardy-Boys J, a New Zealand judge, 'welfare' is an all-encompassing word. It includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained, but even more important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents.

J v C [1969] 1 All ER 788, HL
A child of Spanish parents JJ living in England was taken into care soon after birth and placed with English foster-parents CC. After about a year JJ returned to Spain with the child, now released from care, but when he returned to England 18 months later his health had clearly deteriorated and he was taken into care again. At age 5, JJ sought the return of the child and CC applied to adopt. The judge awarded care and control to CC but ordered the child be brought up as a Roman Catholic (JJ's religion). At age 9, CC applied to vary the order to have the child brought up as an Anglican (their religion), and JJ applied again to have the child returned to them. Ungoed-Thomas J made no change to the earlier order: although JJ were now well able to look after the child themselves, he had become thoroughly English and would have great difficulty in adjusting to life in Spain. The paramount consideration of the child's welfare therefore required that he remain with CC. The House of Lords upheld this decision: the judge had applied the right principles, and his order was not an adoption order for which JJ's consent would have been needed.


G v G (Custody appeal) [1985] 2 AII ER 225, HL
The Court of Appeal dismissed a mother's appeal against a County Court judge's decision to award custody of their children to the father. The Court said it would not interfere with an exercise of discretion by a judge at first instance unless the result was so strikingly wrong as to make it clear that the judge had made an error of principle. The House of Lords dismissed the mother's further appeal: in child welfare cases there is often no one "right answer", and the Court of Appeal should intervene only when the judge at first instance has exceeded the generous ambit within which judicial disagreement is reasonably possible, not merely when it might have preferred a different solution.


Where the welfare of more than one child is under consideration, each child must be considered individually.

Birmingham CC v H (No.3) [1994] 1 All ER 12, HL
A mother M (aged 15) and her child C (aged 1) were both in the care of the local authority, which applied for an order terminating contact between them except for a six-monthly exchange of information. M had a history of violence, and C was thought to be at risk of harm from M, who was unable to look after him properly in any case. Reversing the Court of Appeal and restoring the order made by the judge, the House of Lords said the principle that "the child's welfare shall be the paramount consideration" applied to C's welfare rather than M's, even though she was herself a "child", because it was to C's upbringing that the application related.


Re T & E (Conflicting interests) [1995] 1 FLR 581, Times 29/12/94, Wall J
Half-sisters T and E were in foster care, and the local authority sought to free them for adoption. In E's case there was no opposition, but T's natural father F sought to revoke the care order to have T live with him and his new family. The judge found it was in T's best interests to go to her father but in E's best interests for both girls to be placed for adoption together. Where an application concerned two or more children each with paramount interests those interests have to be balanced, but here only T was technically the subject of proceedings and her interests therefore prevailed.


The welfare checklist
There is no formal definition of welfare in the Act, but s.1(3) sets out a list of factors to which the court must have particular regard in deciding what the child's welfare requires. The list is not exhaustive, neither are the factors in order of importance or (necessarily) of equal importance: it is a checklist to assist the court in arriving at its decision. These factors must be considered where the court is considering a contested s.8 order, a care order, a supervision or education supervision order, or an order relating to contact with a child in care.

The child's wishes
The first consideration (in the list but not necessarily in importance) is the ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding. The weight given to the child's wishes depends on the age and maturity of the child, the nature of the decision to be made, and (to some extent) the judge's own views. In some cases the child's views have been disregarded as a mere reflection of some adult's, but there is perhaps a slowly growing recognition that children - particularly teenage children - are individuals with minds of their own and opinions entitled to respect.

W v A (Child: surname) [1981] 1 All ER 100, CA
This case is considered above. A mother and her children (aged 12 and 10) wished the children to adopt the stepfather's surname, but the Court of Appeal supported the judge's decision to pay little regard to the children's own views, which (he said) merely reflected their mother's.


Re DW (Custody) [1984] Fam Law 17, CA
Following divorce, F and M both remarried; the girl G lived with M and the boy B with F. Some time later M sought custody of B, but B (now 10 and "mature for his age") said he would prefer to stay with his stepmother SM (now separated from F), who had brought him up for the past eight years. The judge awarded custody to M, and SM's appeal failed: B's own wishes were outweighed by the blood tie and the fact that SM (although very loving and competent) would have been a "single parent".


Gillick v West Norfolk HA [1985] 3 All ER 402, HL
The case is discussed above. The House of Lords held that even a child under 16, if she is able to understand the implications of any proposed medical treatment (including in this case, contraceptive treatment), can lawfully consent to that treatment on her own behalf. The age at which a child achieves that level of understanding will depend on the child as an individual and on the nature of the treatment contemplated.


Williamson v Williamson [1986] 2 FLR 146, CA
Following divorce, M was given custody of the three children. After three years, custody of the eldest child (a boy then 13) was transferred to F, and after a further six years the two younger girls (then 14 and 13) voted with their feet, turning up at F's home and refusing to go back to M. The judge awarded formal custody to M but day-to-day care and control to F, and F appealed. Allowing the appeal, the Court of Appeal said split orders of this sort are generally undesirable. The welfare officer recommended the girls be brought up by F, and there was no reason to think the girls themselves would change their minds. They gave cogent reasons for wanting to stay with F, and that was enough.


M v M (Custody appeal) [1987] 1 WLR 404, CA
Following divorce, a 12-year-old girl G went to stay with her father F and then expressed a wish to remain with him permanently, resisting even the suggestion that her mother M should have access. M was granted interim custody, care and control, but F's appeal succeeded. The judge had failed to take account of G's adamant opposition to such an order, which was significant in spite of G's youth, and had been "plainly wrong" to order a handover within four weeks. Interim custody, care and control would be given to F.


Re P (Education) [1992] 1 FLR 316, Times 1/10/91, CA
Following divorce, it was agreed that P should live with F, and a "family decision" was taken that he would go to a certain independent boarding school. When P subsequently reached 13, F said he could not afford the school fees (which under the divorce settlement he would have had to pay) and proposed sending P to a day school instead. M obtained an order for P to be enrolled at the boarding school, but F's appeal was allowed. P himself had now expressed a wish to go to the local school so as to spend more time with F, and he was a sensible and intelligent boy whose wishes were based on sound reasons. In family proceedings concerning children, the court has a duty to listen and pay respect to their wishes and views, particularly when they are older.


B v B (Interviews and listing arrangements) [1994] 2 FLR 489, CA
This case is discussed in more detail later. Wall J said the judge below had quite properly refused to promise the children he would not tell their parents what they said, if they expressed any preference concerning their upbringing. The discretion to interview children to ascertain their views should be exercised with caution, and it must be made clear to the children that it is the court, not the child himself, who is responsible for the ultimate decision.


Where it is proposed to change a child's surname (usually to match his stepfather's) it is sometimes necessary to obtain the consent of the court. In such cases the court must clearly take into account what the child himself wishes to be called, but the child's wishes do not always prevail even where he is well into teenage and the view strongly held.

Re B (Change of surname) [1996] 1 FLR 791, CA
This case is considered above. Children now aged 16, 14 and 12 wanted to change their official surname but the judge refused leave and M's appeal was dismissed. The Court of Appeal said the judge's order clearly contradicted the children's wishes, but it would not be in their best interests to weaken their remaining link with their father (with whom they had had no contact for some five years). It would be wrong to make a new order (especially a contact or residence order) in the teeth of the children's opposition, but here it was merely leaving in place an existing order made at the time of the divorce, and that was different.


The child's needs
The next consideration is the child's physical, emotional and educational needs. The first and third are fairly straightforward, and there are few cases of interest.

May v May [1986] 1 FLR 325, CA
On divorce F and M were awarded joint custody of their two sons (8 and 6), but care and control was given to F (with generous access to M). M's appeal failed: although the judge had not said expressly that he felt F's slightly stricter regime more appropriate than M's very liberal approach (which was not in itself unreasonable), he had clearly taken into account the parties' respective capacity to provide the boys with educational stimulus and discipline, and was certainly not "blatantly wrong" in the decision he had reached.


Emotional needs are a matter of more interest. The court usually tries to keep siblings together, and to ensure that a child remains with a parent with whom he has a particularly close bond: family relationships are particularly important where the dispute is between a parent and a third party.

Adams v Adams [1984] FLR 768, CA
Following divorce, G (aged 10) went to live with M and her new partner (whose affair had led to the divorce), and B (aged 11) went to live with F. F then applied successfully for custody of G as well, and M's appeal failed. The judge had considered the advantages to G of being with her mother as she approached puberty, but had decided these were outweighed by her distress at being separated from B. Dunn LJ said obiter that children should not be put under pressure to choose between their parents: it is often kinder for the court to make the decision for them.


Allington v Allington [1985] FLR 586, CA
After divorce, a girl G of 18 months was initially left with F, but because F was often away evangelising G spent two or three days a week in M's home too. After some ten weeks M sought care and control; the judge refused, but M's appeal succeeded. G needed the continuity of care that M could provide, especially given her age.


C v C (Custody of children) [1988] 2 FLR 291, CA
On divorce, custody of B (aged 4) was initially awarded to F and custody of G (aged 7) to M, with access to the other in each case. M's appealed successfully and was awarded custody of both children: young brothers and sisters should where possible be brought up together for the sake of the emotional support they can give one another.


Re K (Wardship: adoption) [1991] 1 FLR 57, CA
This case is discussed above. The Court of Appeal refused an adoption order where the natural mother M sought the child's return a few months after handing him over (as she thought) temporarily. The question was not whether the prospective adopters would be able to give the child a better home, but whether the natural family was so unsuitable that the child's interests demanded the displacement of their parental responsibility. In this case, M clearly wanted the child back and had cared properly for her other children: it would not be in K's interests to deprive her of the chance to grow up with her natural family.


Re B (Custody) [1991] 1 FLR 137, CA
Following divorce and F's release from prison, B11 and G7 went to live with F and B5 and B4 with M. M subsequently applied for custody of all four children, but admitted she had never really got on with B11 (who wanted to stay with F), leaving only G7 (whose wishes were unclear) in dispute. The judge awarded custody of G7 to M, but F appealed with new evidence of G7's wish to remain with him. The Court of Appeal allowed his appeal and remitted the case to the County Court for prompt rehearing in the light of this new evidence.


At one time the courts (like most people) took the view that young children and girls should remain with their mothers, and that boys over a certain age should be with their fathers. Social and judicial attitudes have gradually changed, however, and although small babies are usually left with their mothers each case nowadays is considered on its merits.

Re S (Custody) [1991] 2 FLR 388, CA
M walked out leaving F with a girl G, aged 2. F was subsequently awarded custody, but M kept G after an access visit and subsequently obtained from a judge a custody order in her favour. Allowing F's appeal and remitting the case to the family proceedings court for a new hearing, the Court of Appeal said G's welfare was the first and paramount consideration: there is no legal presumption in favour of one parent over another, even though in practice a small child is usually better off with its mother, and the judge was wrong to prefer his discretion over the magistrates'.


Re A (Custody) [1991] 2 FLR 394, CA
M walked out with a girl G12, leaving three boys and a girl G6 with F. In a later dispute the judge awarded custody of G6 to M, but F's appeal was allowed. It is natural for young children to be with their mothers, but this is a consideration and not a presumption, especially where (as here) mother and child had been separated for some time. G6's best interests would be served by her staying where she was now settled.


Re W [1992] 2 FLR 332, Times 22/5/92, CA
An unmarried couple agreed before their child W was born that it would be looked after by F, who employed a nanny for the purpose. About three weeks after the birth M applied for a residence order for C to live with her; the judge ordered the status quo to remain pending a welfare report, but M's appeal was allowed. Balcom,be LJ said although there is no presumption of law that a child of any age is better off with one parent than another, the court could not disregard the natural position and the rebuttable presumption of fact that a baby's best interests lie with its mother.


B v B (Residence order) [1997] 1 FLR 139, CA
After M and F separated and F moved out, their three sons B15, B12 and B8 shuttled between the two homes. The judge ordered that B12 and B8 should live with M, but B12 preferred to live with F and the judge subsequently amended his order accordingly, ordering that F should make no further application in respect of B8 without leave of the court. Allowing F's appeal in part, Butler-Sloss LJ said it is unusual to separate siblings but the judge had acted within his discretion. However, the power to forbid applications without leave interferes with the citizen's right of access to the courts and should be sparingly used: F had not acted at all improperly and should not be restrained in this way.


Re K (Residence order) (1999) Times 8/1/99, CA
Following divorce, the judge ordered that B2 should live with his father F (who worked from home using a computer) rather than his mother M (who was unemployed). Affirming the order, Cazalet J said the days have gone when mothers could assume they were the ones who should care for children. Hirst LJ agreed: M appeared to be unreliable and untrustworthy, and if she was given the child there was a likelihood of her returning to India with him and denying F any further contact.


Change in circumstances
The court must also consider the likely effect on the child of any change in his circumstances, and is generally reluctant to disturb the status quo unless there are compelling reasons for so doing. This does not prevent the court's ordering a change where the status quo is itself very recent, however, or where it is unsatisfactory, and status quo arguments carry hardly any weight where one parent has kidnapped the child or wrongfully sought to prevent him from maintaining a relationship with the other.

Jenkins v Jenkins (1980) 1 FLR 148, CA
H and W separated and the children remained with W, but H snatched G9 on an access visit and took her to his mother's home. W sought interim custody pending a divorce settlement, but the judge refused to make any order until a welfare report had been prepared. Allowing W's appeal, Brandon LJ said the court should express the gravest displeasure when one parent snatches a child from the other, and should order its immediate return.


B v B (Custody) [1985] FLR 166, CA
M (then aged 18) walked out leaving their 2½-year-old child with F, but two years later she sought custody. The judge awarded her care and control: F was currently looking after the child because he was unemployed and on benefit, but if he were to get a full-time job (which was his primary responsibility) he would be unable to continue doing so. F's appeal succeeded: the Court of Appeal said the judge had erred in giving weight to F's duty to find work instead of relying on benefits. His principal and only consideration should have been the welfare of the child.


Allington v Allington [1985] FLR 586, CA
This case is discussed above. The sporadic nature of F's care so far, and its uncertainty for the future, were major factors in the court's decision to award custody to M instead.


Re E (Access) [1987] 1 FLR 368, CA
M gave birth shortly after separating from F, and subsequently married a Jehovah's Witness. M sought to deny F any further access to the child, and said she would not cooperate with any access order the court made. The magistrates made an order for 2 hours' access per month (amended to three hours quarterly by the judge) and M appealed. Dismissing her appeal and restoring the magistrates' original order, the Court of Appeal said the fact that M's attitude to F's visits might distress the child could not alter the fact that those visits would be in the child's best interests (inter alia, by giving him a broader view of the world).


Re B (Residence order) [1992] 3 All ER 867, CA
W left home to live with another man, leaving H with their four children. W subsequently returned and abducted the youngest child C, and H applied ex parte for (i) a residence order directing that the children live with H in the matrimonial home, (ii) a prohibited steps order against W's removing any child from H's care, and (iii) a specific issue order requiring her to return C to H forthwith. The judge said he had no power to make a residence order ex parte, and was barred by statute from using a prohibited steps or specific issue order to the same end. Each parent had the same parental responsibility for the children, and he could not properly order W to hand over a child to H. Allowing H's appeal in substance, Butler-Sloss LJ said the court does have jurisdiction to make an interim residence order ex parte in exceptional circumstances, and (under s.11(7)) can attach to such an order directions as to how it is to be carried out. The Court of Appeal therefore made an interim residence order in H's favour, with directions attached that C be returned to H's care and the other children remain there pending a full hearing in a matter of days.


Relevant characteristics
The court must have regard to the child's age, sex, background and any characteristics of his which the court considers relevant. The relevance (or not) of race has been quite controversial, particularly in relation to fostering and adoption, and a number of cases have considered whether religious differences might also be of importance.

Re P (Wardship: surrogacy) [1987] 2 FLR 421, Arnold P
This case is discussed above. Awarding custody to the natural mother, the judge said the children's welfare was the first and paramount consideration, and the surrogacy agreement was irrelevant except insofar as it might reflect on the fitness of the parties (which in this case it did not). He therefore balanced the material and ethnic advantages of life with the "employing" couple against the bonding that had already occurred with the natural mother, and came down on the side of the latter.


Re P [1990] 1 FLR 96, CA
A mixed-race child in care was placed with a white foster-mother FM. When FM sought to adopt, the local authority opposed her application because of its "same race" adoption policy (though at that time no racially similar adopters were available) and the judge refused FM the order she sought. Dismissing FM's appeal, the Court of Appeal said the judge was not "plainly wrong" even though the advantages of continuity and stability pointed the other way.


Re T (Custody: religious upbringing) (1975) 2 FLR 239, CA
F and M separated (still living in the same house), and when M joined the Jehovah's Witnesses, F sought custody of their three younger daughters. The judge awarded care and control to F, on the grounds that if given to M they would be excluded from ordinary social life. The Court of Appeal said the judge had not given enough weight to the satisfactory way W was currently raising the girls. Her beliefs were not immoral or socially obnoxious, and a creed that forbade birthday parties and other frivolity was not inherently wrong. They therefore awarded custody to M, but with generous access to F (including birthdays and Christmas), and subject to a condition that M would permit blood transfusions should they become necessary.


Hewison v Hewison (1977) 7 Fam Law 207, CA
F and M were Exclusive Brethren, forced to marry in their teens; twelve years later they had three children. M left the sect and the children remained with F in his parents' home. F was granted a divorce because of M's adultery, but M was subsequently granted custody and F's appeal failed. The judge said the disruption caused by the change in lifestyle would be outweighed by the greater social and educational freedom the children would have in M's Baptist environment.


Re P (Residence order: child's welfare) (1999) Times 11/5/99, CA
A child P was born into an Orthodox Jewish family, but was placed with Christian foster parents at the age of 17 months because of her parents' illness. Three years later her parents sought her return, citing inter alia the importance of P's being brought up in her own religion. Wall J found that P was now very strongly attached to her foster parents and would be likely to suffer emotional harm if removed from them; he therefore refused the parents' application and ordered that they should not make any further residence applications without the leave of the court. The parents' appeal failed: Butler-Sloss LJ said the court's primary concern is the child's welfare: her natural religious and cultural heritage are relevant but not paramount considerations.


Risk of harm
The court must consider any harm which the child has suffered or is at risk of suffering. This is not limited to physical cruelty and sexual abuse - though both are obviously relevant - but includes any impairment of the child's physical or psychological health and development.

Wright v Wright (1980) 2 FLR 276, CA
F was a Jehovah's Witness and M a member of the Church of England. M left home taking a girl G5 with her, and was subsequently granted custody. F sought access, but refused to give an undertaking not to indoctrinate G5 in his faith. The judge refused F's application and F's appeal was dismissed: even if M's opposition was an over-reaction, the conflict between the two sets of parental beliefs could damage G5.


Re B & G (Custody) (1985) 6 FLR 134, Latey J
Scientologists M and F divorced and married new partners. M left the sect and sought custody of their children (aged 10 and 8), arguing they should not be brought up in the sect. The judge agreed and awarded care and control to M with access to F. Scientology is immoral, socially obnoxious, corrupt, sinister and dangerous, aiming to capture and brainwash impressionable young people. The children had been with F for the past five years, but the risks presented by the religious environment outweighed the advantages of leaving them where they were.


Re R (Child abuse: access) [1988] 1 FLR 206, CA
An unmarried couple separated leaving the children with M. There was evidence of sexual abuse by F but he was not prosecuted. F sought access, and the judge ordered supervised access four times a year. M's appeal was allowed: having found (even on a balance of probabilities) that F had been guilty of abuse, the judge had been "plainly wrong" to allow continued access. The very limited access he proposed would be of no benefit to the children.


C v C (Child abuse: access) [1988] 1 FLR 462, Latey J
Following divorce, care and control of the young children was given to M with access to F. Suspicions then arose that F had sexually abused the eldest girl G6, not for his own gratification but in thoughtless horseplay. The judge said that since F was now aware of the inappropriateness of his behaviour, his access should continue subject to supervision.


H v H (Child abuse: access) [1989] 1 FLR 212, CA
Following divorce, there was evidence that F had seriously abused his daughter G10, but he was not prosecuted because of the lack of corroboration. The recorder ordered supervised access for F, and M's appeal was dismissed. A finding of sexual abuse was not an absolute bar to access, and given the good relationships the children still had with F, the recorder had exercised his discretion properly. The question was what was in the best interests of the children. (Obiter, it would not have been appropriate to allow access to the younger boys while denying it to G10.)


L v L (Child abuse: access) [1989] 2 FLR 16, CA
Following divorce, the judge awarded custody to M and supervised access to F, in spite of finding that F had abused his daughter G5. He found as fact that there was a close bond between F and G5, and that she was socially well-adjusted and had benefited from the interim access allowed. M's appeal failed: the judge had considered all the relevant factors and had come to a balanced and sensitive decision.


Re B (Child abuse: custody) [1990] 2 FLR 317, Ward J
A boy B4 was taken into care in the light of strong suspicions of sexual abuse by his father F. He appeared to have good relationships with both his parents when they visited, and when the local authority sought to place B4 for adoption, the parents sought his return to them. The judge said there is a spectrum of abuse and an index of harm to be considered: the risk of further abuse must be balanced against the effects of separating a child from his parents. On the evidence, B4's best interests would be served by his returning to his parents as soon as this could be arranged. [Eighteen months later there was no evidence of any further abuse, and the wardship was discontinued.]


Re N (Sexual abuse: video evidence) [1996] 4 All ER 225, CA
A young girl thought to have been sexually abused by her father F was interviewed on videotape by a police officer and a social worker: her responses were initially unhelpful and the interviewers resorted to leading questions. The judge found this evidence unconvincing, but in the light of the opinions of the court welfare officer and the guardian ad litem that the child was giving a truthful account of sexual abuse, he dismissed F's application for a contact order. Allowing F's appeal and ordering a new hearing, the Court of Appeal said the judge had been right to reject the evidence of the interview, which was so tainted by leading questions and pressure as to be unreliable, and wrong to accept the inadmissible evidence of the "experts" as to the child's veracity; his decision was therefore fatally flawed.


Parental capabilities
The penultimate consideration is how capable each of the child's parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting the child's needs. This can lead a court to contrast care capabilities, and has allowed it to consider the appropriateness of homosexual carers.

Dicocco v Milne [1982] 3 All ER 897, CA
F and M had a child, which M looked after full-time with the help of her family; F lived separately with another woman with children of her own. F applied for custody of the child to be transferred from M to him, arguing that the child was often dirty and not well cared-for, and that he (with his cohabitant, a child-minder during the day, and occasionally a relative) could provide better care, and the magistrates granted his application. The Divisional Court declined to interfere with the magistrates' exercise of their discretion, but the Court of Appeal allowed M's appeal and restored custody to her. The magistrates had not conducted the balancing exercise properly, giving too little weight to the need for continuity and the disadvantages to the child of being brought up by three or four adults rather than one primary carer.


C v C (Custody appeal) [1991] 1 FLR 223, CA
Following divorce, it was agreed that the daughter G should remain with M. M subsequently entered a lesbian relationship and F sought custody of G. The judge refused, saying M's relationship was irrelevant, but the Court of Appeal allowed F's appeal and remitted the case for rehearing by a High Court judge. Although the relationship did not per se make M an unfit mother, it was an important factor to be taken into account.


B v B (Custody &c) [1991] 1 FLR 402, Judge Callman
M left home to live with another woman, taking B2 with her but leaving the two older children with F and his new (female) partner. The judge awarded F custody of the older children (who were happy with him) but gave B2 to M. There was no evidence to support the suggestion that B2's own sexual identity would be influenced by M's lesbianism, and the possible social stigma was outweighed by the fact that M had cared for him ever since he was born.


G v F [1998] 3 FCR 1, Bracewell J
Two women G and F lived in a stable lesbian relationship, and F bore a child (which they treated as the child of them both) by artificial insemination. When their relationship broke up three years later, G sought leave to apply for a contact order and a shared residence order. Giving leave, the judge said this was a serious application: G had played a large part in the child's life and had deep affection and concern. Her lesbianism was merely a background fact, and no reason to discriminate.


Range of powers
The last consideration on the list (though the list itself is not exhaustive) is the range of powers available to the court under the Act in the proceedings in question. The range of powers available to the court in children's cases is quite wide, and the court may feel the child's welfare will be best served by making some order that neither party has sought. The court must also bear in mind its power to make no order at all, which may in some cases be the best thing for the child (and possibly even the best thing all round).

The "No Order" presumption
Section 1(5) of the Children Act 1989 provides that where a court is considering whether or not to make one or more orders under the Act with respect to a child, it 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.

B v B (Grandparent: residence order) [1992] Fam Law 490, Johnson J
A grandmother GM sought a residence order in respect of a girl G11 who had lived with her since birth, the mother M being given to erratic behaviour. The magistrates refused such an order because there was no evident risk of G11's being removed, so that the order would give her no more benefit than no order. GM's appeal was allowed: the order would benefit G11 through the authority it would give GM in respect of G11's educational and medical needs, and by relieving G11's own anxiety about her future.


Re O (Care proceedings: education) [1992] 4 All ER 905, Times 6/3/92, Ewbank J
A local authority applied for a care order in respect of a 14-year-old girl who was staying away from school for long periods. The magistrates made such an order, and on appeal the judge upheld their decision: the lack of intellectual and social development resulting from truancy was "significant harm" justifying a care order. [This decision has been criticised by some writers for paying too little attention to s.1(5).]


No delay
Section 1(2) of the Act provides that, in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that delay in determining the question is likely to prejudice the welfare of the child. Certainly the delays characteristic of other areas of civil (and even criminal) law are much less common in family law matters involving children, but it is not always appropriate to make a final decision at the first hearing, and purposeful delay is sometimes desirable.

J v C [1969] 1 All ER 788, HL
This case is discussed above. The House of Lords finally decided the child's fate some five years after the commencement of proceedings, by which time the status quo had become so firmly established as to leave their Lordships little room for manoeuvre.


C v Solihull MBC [1993] 1 FLR 290, Ward J
A child C was removed from his parents following allegations of physical abuse; he spent two weeks with foster parents, but the magistrates then made a residence order in favour of the grandparents, with a view to C's prompt return to his parents subject to local authority supervision. The guardian ad litem appealed, and the Court of Appeal transferred the case to the county court for rehearing. Although delay is ordinarily inimical to a child's welfare, planned and purposeful delay (e.g. to obtain the results of an assessment) may be beneficial and should sometimes be encouraged.


Re B (Contact: interim order) [1994] 2 FLR 269, Times 8/4/94, Ewbank J
F sought contact and a parental responsibility order in respect of his son B3. Shortly before the hearing F and M agreed a scheme for interim contact supervised by a welfare officer, to be reviewed in four months, but the magistrates refused to make any but a final order. The parties' appeal was allowed: although delay is generally detrimental, a properly monitored contact programme would be beneficial in this case.


B v B (Interviews and listing arrangements) [1994] 2 FLR 489, CA
Following divorce, F and M continued to live in the same house with their three children pending resolution of the ancillary proceedings. M applied for custody, but the proceedings were delayed and were eventually heard four years later. The judge gave custody to M, but F's appeal was allowed Wall J said the long delay had undoubtedly prejudiced the welfare of the children and should not have been allowed to happen.


Re A & B (No.2) [1995] 1 FLR 351, Wall J
F's application for contact was not heard for two years because of investigations into suspected sexual abuse. The judge said the court should use its powers proactively to give directions and ensure cases were not allowed to "drift". The overall delay in this case was unacceptable, he said, and was attributable in large measure to the court's failure to impose its will on the case, give proper directions and impose a tight timetable. Section 11 imposes a duty on the court to avoid delay.




CHILDRENS' RIGHTS
The idea that children have rights - and rights against their parents too - is a fairly recent one. The United Nations adopted its Convention on the Rights of the Child in 1989, and the Convention was ratified by the United Kingdom in 1991. It requires states party to it to treat the interests of children as a primary consideration in all actions concerning them, but reinforces the idea of family as the fundamental social unit for promoting children's well-being. English law has never treated parents' authority over their children as absolute, but some cases from the last century and this show how attitudes have changed.

Re Agar-Ellis (1883) LR 24 ChD 317, CA
This case is discussed in detail above. Cotton LJ said the court had no power to interfere with the father's legal right, in the absence of fault on his part, to bring up his daughter as he thought best. The mere fact that his 16-year-old daughter wished to spend some time with her mother was not enough to justify intervention.


R v Rahman (1985) Times 5/6/85, CA
A father D seized his 15-year-old daughter and tried to take her back to Bangladesh against her wishes; she struggled and police intervened. D was charged with false imprisonment, and pled guilty when the judge dismissed his defence that a parent could not falsely imprison his own child. Dismissing D's appeal, Lord Lane CJ said restrictions imposed by parents on their children are usually well within the bounds of reasonable parental discipline and hence not unlawful; but if the restriction is for such a period or in such circumstances as to take it out of the realm of reasonable parental discipline - which is a matter for the jury - a conviction could follow.


Gillick v West Norfolk Health Authority [1985] 3 All ER 402, HL
This case is discussed above. Lord Fraser (citing Blackstone's Commentaries 150 years earlier) said parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family. Lord Scarman said the underlying principle of the law is that parental rights yield to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter in question.


Re S (Representation) [1993] 2 FLR 437, Times 2/3/93, CA
M and F were separated, and a son S (aged 11) lived with M. F applied for a residence order and S (as a party to the proceedings) sought to dispense with the services of the Official Solicitor as guardian ad litem so that he could represent himself. The judge refused leave and S's appeal failed. Bingham MR said except in a straightforward matter or with and older child, the court would not normally grant leave to a child to act without a guardian ad litem unless he was independently represented, which in turn would depend on whether he had sufficient understanding to give coherent instructions. The Children Act requires the court to balance the rights of children as individuals with their own views and feelings, which should command serious attention, and the fact that a child is, after all, still a child.


Re AD [1993] Fam Law 405, Brown P
Following her parents' divorce, a 14-year-old girl AD went to live with the family of her 18-year-old boyfriend and applied for a residence order in their favour. The judge refused the order, but allowed AD to be heard in her own right and made orders leading eventually a a reconciliation between AD and her mother.




ORDERS AVAILABLE
The principal "private orders" available to the court in respect of the upbringing of children are set out in s.8 of the Children Act 1989. These orders are available in wardship proceedings and in any family proceedings (including for example divorce, domestic violence and adoption proceedings) in which any question arises as to the welfare of any child, or in free-standing proceedings brought expressly under the Children Act 1989. Under s.9(6) a court cannot make a s.8 order with respect to a child over the age of 16, nor (under s.9(7)) an order which will last beyond a child's 16th birthday unless the circumstances are exceptional.

A residence order, a contact order, a prohibited steps order or a specific issue order can in principle be granted or discharged on the application of any individual, or at the court's own motion. Under s.10, certain classes of person can apply for a s.8 order as of right, and anyone else (including the child) may do so with the leave of the court.

A parent (including a putative father), a guardian or a person with a residence order, or any other person prescribed by rules of court, may apply for any s.8 order as of right.

Any party to a marriage (whether or not subsisting) in relation to which the child is "a child of the family", or any person with whom the child has lived for at least three years out of the previous five, or any person with the consent of the persons in whose favour a residence order is in force, of the local authority (if the child is in care) and/or of each person having parental responsibility for the child, or any other person prescribed by rules of court, may apply for a residence or contact order as of right.

Any person on whose application a s.8 order was made, or who is named in a contact order,. may apply for the variation or discharge of that order as of right.

Any other person, including the child himself, may apply for any s.8 order if given leave by the court. (Under s.9(3) of the Act, a local authority foster parent not apply for leave unless he or she has the consent of the authority, or is a relative of the child, or has had the care of the child for at least three years.)

The decision whether or not to grant leave is not "a question regarding the upbringing of a child", so that the child's welfare is a relevant but not a paramount consideration.

Re A & W (Residence order) [1992] 3 All ER 872, Times 15/5/92, CA
Six children were taken into care and placed with a foster-mother FM; the two eldest ran away after alleging abuse by FM, and the local authority decided to remove the other four children and place them elsewhere. FM sought leave to apply for a residence order and this was granted: the judge said the children's welfare was the paramount consideration and it was at least possible that the best interests of one or more children might be served by remaining with FM. An appeal by the local authority was allowed and leave revoked: an application for leave did not in itself raise any question regarding the upbringing of a child, so the judge had applied the wrong test.


Re T (1993) Times 10/5/93, CA
A 13-year-old girl wanted to leave her adoptive parents and live with her aunt, and sought leave to apply for a residence order. Thorpe J made her a ward of court, but T's appeal was allowed. The Court of Appeal said wardship is inappropriate where a case can be dealt with under Children Act procedures: T had satisfied her solicitor that she had the capacity to give proper instructions, and the court should grant leave to apply if it is satisfied that the child has sufficient understanding to make her own application. (See also Re S (Representation) below.)


Local authorities have special powers to institute care proceedings and other proceedings to protect children, and may not try to circumvent the requirements of these by seeking s.8 orders.

Nottinghamshire CC v P [1993] 3 All ER 815, Times 8/4/93, CA
Following allegations of sexual abuse of three girls, the local authority applied for a prohibited steps order excluding their father from the matrimonial home. The judge said he was precluded by s.9(5) from making a prohibited steps order in order to achieve a result that could be achieved by a residence or contact order, and by s.9(2) from making a residence or contact order in favour of a local authority. The Court of Appeal upheld this ruling, and said the proper course would be for the local authority to invoke the specific powers in Part IV of the Act.


F v Cambridgeshire CC [1995] 1 FLR 516, Stuart-White J
Shortly before F's release from prison, following his conviction for indecently assaulting one child, he applied for a contact order in respect of his other children. The local authority opposed this, seeking residence, no-contact and prohibited steps orders, the magistrates refused it, and F's appeal failed. The judge said the local authority had no power to seek private law orders under s.8 and so should not have been joined as a party to the case, but there was no indication that the magistrates had in fact taken any irrelevant factors into account.


The local authorities' attempts to use s.8 orders in these cases were a response to the absence of any legal means of protecting children from violent adults without taking them. Section 52 of the Family Law Act 1996 amends the Children Act 1989 by giving the courts power, in certain circumstances, to oust a violent adult while simultaneously granting an emergency protection order and an interim care order, and may provide a satisfactory solution to the problem.

Gloucestershire CC v P (1999) Times 30/4/99, CA
A child P4 was in care and had been placed with foster parents XX. The LA applied for an order freeing P for adoption, but was opposed by P's paternal family. The litigation friend suggested that the care order be discharged and a residence order be made in favour of XX, but Wall J said the restrictions imposed by s.9(3) prevented his making such an order. Allowing P's appeal, the Court of Appeal said the relevant section restricted the foster parents' ability to apply for an order under s.8, but did not restrict the judge's power to make such an order of his own motion.


Residence orders
A residence order settles the arrangements to be made as to the person with whom the child is to live. Such orders are most commonly sought in proceedings arising from a divorce or judicial separation, and replace the former "custody orders". A residence order is not synonymous with a parental responsibility order - the "other parent" normally retains full parental responsibility subject to any restrictions imposed by the order - but where a residence order is made in favour of an unmarried father currently without parental responsibility, s.12(1) requires the court to make a parental responsibility order in his favour as well. Under s.12(2), limited parental responsibility (excluding the right to consent or refuse consent to adoption or the appointment of a guardian) is conferred automatically upon any other person in whose favour a residence order is made.

Once a residence order is made, the child's surname cannot be changed without the leave of the court, nor can the child be taken out of the jurisdiction without leave, except for up to a month by the person in whose favour the order was made. (Ordinary foreign holidays are therefore acceptable, but not emigration.)

Re F (Child: surname) [1993] 2 FLR 837, CA
The judge authorised a change in the surname of two girls aged 5 and 3, from their father's to their stepfather's. Allowing F's appeal, the Court of Appeal said changing a child's surname is an important matter not to be undertaken lightly. In the instant case there was no evidence that it would be in the children's interests to change their name, and there was no apparent disadvantage to their retaining F's name.


G v A (Children: surname) [1995] 2 FCR 223, Recorder Lowther
M and F were not married: their children's births were registered in F's name (G) but when they started school they were known by the name of M's new partner A for most purposes, and by F's name only on official documents. M and A subsequently married, and the children of that marriage took A's name. The judge made a parental responsibility order in A's favour and directed that the children be known as G-A (hyphenated) in future.


Re B (Removal from jurisdiction) [1994] Fam Law 11, CA
M and F separated and M subsequently married H; contact between F and their daughters DD broke down. M sought leave of the court to go to live in France with H, taking DD with her. The judge granted leave because of the "seething resentment" M and DD would feel if he refused, and F's appeal was dismissed: no close relationship would be disturbed by the move.


MH v GP (Child: emigration) [1995] 2 FLR 106, Thorpe J
M and F separated, and M was given care and control of their child C5, with access to F. M sought leave to emigrate to New Zealand to start a new life with C, and F objected. The judge said C's welfare was the first and paramount consideration: leave to take a child out of the jurisdiction unless the child's interests were clearly incompatible with those of the custodial parent. There was thus a presumption in favour of M. But on the facts, the maintenance and development of C's relationship with F were of such importance to C's development that M's application must fail.


Re E (Residence: conditions) [1997] 2 FLR 638, CA
In contested proceedings the judge made a residence order in M's favour but imposed a condition under s.11(7) that the children live at a certain address until otherwise ordered or agreed by F. Allowing M's appeal against the condition, Butler-Sloss LJ said it is not normally appropriate to attach any condition to a residence order limiting the carer's right to live (with the children) anywhere in the UK.


A residence order may be made in favour of two or more persons, whether or not they live together. For example, an order may provide for a child to spend Monday to Friday with one parent and weekends with another, though the courts are cautious about anything that may leave the child feeling insecure and uncertain as to his "real home".

Riley v Riley [1986] 2 FLR 429, CA
Following divorce, a consent order was made whereby the child C9 spent alternate weeks with M and F now living about a mile apart, attending a school midway between. Five years later, M applied for sole custody; the judge at first instance refused this but M's appeal was allowed. The Court of Appeal said an order that kept C moving backwards and forwards was prima facie wrong: C's paramount interests demanded a settled home.


J v J (Joint care and control) [1991] 2 FLR 385, CA
When M and F separated, their daughter G5 lived with F but M had generous access. In the divorce proceeding they proposed joint care and control, and the judge made an interim order giving them alternate weeks. Allowing an appeal against this order, Scott Baker J said the vice of a joint care and control order in most cases is that the child does not know where he or she really lives. Such an order would be acceptable in the instant case, however, on the amended basis that G5 lived with F during term and M during half-term holidays and alternate weekends, the main holidays alternating or being split between both parents.


A v A (Children: shared residence order) [1994] 1 FLR 669, Times 23/2/94, CA
On separation, the court made a shared residence order under s.11(4) of the Children Act 1989. M's appeal was dismissed: in the light of the Act, said Butler-Sloss LJ, Riley could no longer be regarded as good law, although there would have to be some positive benefit to the child to justify making such an order, and no significant differences between the parties still to be resolved.


Re Y (Ex parte interim orders) [1994] Fam Law 127, Johnson J
M was mentally unstable and threatened suicide, and GM obtained ex parte a residence order in her favour with directions for a further hearing in twelve weeks. The judge allowed M's appeal: twelve weeks was far too long for an interim order on which M had not had the chance of being heard. Having now heard M's argument he made a residence order in GM's favour and a contact order for M, and transferred the case back to the family proceedings court for further consideration.


Re D (Shared residence orders) (2001) Times 5/1/01, CA
Although a shared residence order is unusual, a court may make such an order if it is in the child's best interests. In the instant case three children spent weeknights and half the holidays with the father, and it was clear that the original residence order in favour of the mother only had led to a number of disputes in relation to education, passports &c. On the particular facts, the judge had been right to substitute a shared residence order: the children's welfare would benefit from an order which reflected the realities of the situation.


Contact orders
A contact order requires 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 thus replaces the former "access order", and is most often used to preserve the child's links with both his parents (and perhaps other relatives too) after their marriage or other relationship has broken down.

A contact order may be in almost any terms, but (where there is no agreement between the parties) commonly defines the frequency, duration, time and place of the visits, or the nature and frequency of contact by telephone, letter or other means. It may impose conditions, such as a supervision requirement in the case of face-to-face visits, and may require the "residence parent" to provide school reports or other information to help make the contact meaningful.

A contact order as such cannot be made in relation to a child in the care of the local authority, and the making of a care order discharges any pre-existing contact order, but s.34 of the Act makes provision for a similar order allowing a child in care to retain contact with his family and friends. Like a residence order in favour of one parent, a contact order which requires one parent to allow the other to have contact with the child ceases to have any effect if the parents subsequently live together for a continuous period of at least six months.

Courts are slow to deny contact between children and their parents, although there is no legal presumption of contact. There are signs of a new and more restrictive approach, however, where the parent seeking contact has been violent towards the child.

A v C (1978) [1985] FLR 445, CA
A surrogate mother M refused to hand over the child C to her "employers" F and W. F obtained an access order, but M's appeal was allowed. F had no bond with C apart from mere biology and a "sordid commercial bargain": contact with F would bring no advantage to C.


Re SM (Natural father: access) [1991] 2 FLR 333, Brown P
M and F (unmarried and not cohabiting) had a child C; F had monthly access until M married and terminated it. F obtained an access order and M appealed. Her appeal succeeded: the justices had not taken account of the very strong reasons for denying access in this particular case, such as the disruption to a now stable family unit, the absence of an real bond between C (now 2) and F, and the absence of any specific benefits to C from the continued contact.


Re B (Bizarre behaviour: access) [1992] 1 FLR 140, Times 15/7/91, CA
When M and F divorced their child C went to M. From time to time F exhibited strange behaviour such as trying to set light to the grass in a field, or walking down the street with a plastic bag on his head, though there was never any violence towards M or C. F appealed successfully against the judge's refusal to allow him supervised access to C: his bizarre behaviour did not displace the assumption that a child should normally have continuing access to both parents.


Re H (Access) [1992] 1 FLR 148, CA
When F and M separated their children CC remained with M, who terminated F's access after six months. Some three years later F applied for access, but the judge refused on the grounds that renewal of contact after so long would upset CC. The Court of Appeal allowed F's appeal, saying there was no cogent reason to deny CC access to their natural father: any minor upsets would surely be outweighed by the long-term advantages.


Re C (Access) [1992] 1 FLR 309, CA
When H and W divorced, W's child C (by another man F) remained with W. H (who was by then in prison) saw C several times over the next few years and now applied for defined access. The judge refused: C (now 11) had discovered F's identity and so had three men in his life: H, F, and W's new partner P. H's appeal failed: the lack of a blood tie between H and C was unimportant in view of their earlier de facto family relationship, but the judge had considered C's long-term as well as short-term welfare and his decision was not improper.


Re F (Denial of contact) [1993] 2 FLR 677, CA
F sought a contact order in respect of his sons BB aged 12 and 9. F was transsexual (though still in a male body) and BB did not want continued contact: the elder in particular had suffered some psychiatric illness resulting from F's condition. The judge refused and F's appeal failed: the judge had given BB's views very considerable weight, and although he had apparently not considered making a family assistance order to help BB adjust to F's new sexual identity, he was not "clearly wrong" and his decision should stand.


Re H (Contact: principles) [1994] 2 FLR 969, CA
When M and F divorced their child C went with M, and (aged 4) regarded M's cohabitant as her father. F now obtained a limited supervised contact order and M's appeal was dismissed: the judge had taken account of M's strong objections, the stable family unit and the lack of contact with F for the past 18 months, and his decision that C would nevertheless benefit from contact with F was not "obviously wrong".


Re M (Contact: welfare test) [1995] 1 FLR 274, CA
Two years after separation, the children were reluctant to visit M and showed extreme distress when forced to do so. Contact was therefore terminated, but 18 months later M applied for it to be renewed. The judge refused to make a contact order and M's appeal failed: the decision in Re W above doesn't extend the law, and although there is a very strong presumption in favour of contact, each case must be considered on its merits. Wilson J said the question is whether the fundamental emotional need of every child for an enduring relationship with both parents is outweighed by the depth of the harm which (in the light of his wishes and feelings) the child would risk suffering if a contact order were made.


Re D (Contact: interim order) [1995] 1 FLR 495, Times 1/2/95, Wall J
A child D was born from a brief relationship, but had no contact with F for the first two years. When F sought contact and M opposed it, the district judge made an order for interim contact at a contact centre pending a full hearing. M's appeal succeeded: it is difficult to envisage circumstances in which an interim order can properly be made when the whole principle of contact is still in dispute and there are unresolved factual issues on which evidence has yet to be taken.


Re L (Contact: transsexual applicant) [1995] 2 FLR 438, Thorpe J
Cohabitants F and M separated and their daughter G6 went with M, F having weekly contact. F was in the process of undergoing sex-change therapy and M sought to terminate the contact. The judge made a parental responsibility order in F's favour, coupled with an order (by consent) for indirect contact by means of occasional presents and monthly letters or cards.


K v M (Paternity: contact) [1996] 1 FLR 312, Johnson J
W had a child during her marriage with H, but W's lover P claimed paternity and sought a contact order. The judge refused and sought undertakings that there would be no "idle talk" in future. H and W had remained together in spite of W's affair; there was no prospect of their marriage breaking down, so no reason to disturb the family relationship between themselves and the child.


Re M (Contact: violent parent) (1998) Times 24/11/98, Wall J
Cohabitants F and M separated permanently after several years in which F had frequently shown violence to M in their children's presence. F acquired parental responsibility by agreement, and now sought contact orders in respect of B7 and B5 (and a third child whose paternity was disputed). The magistrates refused the order and F's appeal failed: the judge said although there is a presumption that contact with both parents in almost always in a child's best interests, in cases involving domestic violence the father must accept the need to change his behaviour and show that he is a fit person before a contact order is made.


Re L, V, M & H (Contact - Domestic violence) (2000) Times 21/6/00, CA
In four separate cases a judge had made contact orders giving only indirect contact to fathers who had used violence against their partners. Dismissing the fathers' appeals, Butler-Sloss P said there should be no automatic assumption that contact with a violent parent was in a child's interests: if anything, the assumption should be in the opposite direction. That does not mean that violence creates prima facie a barrier for the non-residential parent to surmount, but it is certainly a matter for the court to consider. In all four cases, the trial judges had balanced the various factors and had exercised their discretion entirely properly. Waller LJ, agreeing, said the effect on children of their being exposed to violence by one parent against the other had hitherto been underestimated.


A particularly difficult situation arises when the parent with whom the child lives is strongly opposed - perhaps for very good reasons - to any contact with the other parent. The court in such cases must still make its decision in the best interests of the child, and although the parent's anxiety or hostility may be a relevant factor in determining where those best interests lie, it cannot be conclusive.

Re D (Contact: mother 's hostility) [1993] 2 FLR 1, CA
F sought contact with C a year after C's birth, but a trial proved unsuccessful and M opposed any further contact as unsettling for C. F's appeal failed: although there is a presumption that a child has the right to know both its parents, there are exceptions. In the instant case, M's implacable hostility to F was a factor capable of displacing the presumption because of the serious emotional harm it might cause to C.


Re F (Contact: mother's anxiety) [1993] 2 FLR 830, CA
F had been convicted of assaulting M; he was now a reformed character, but his application for access to their children was dismissed because of the stress and anxiety it would cause M. F's appeal was allowed and his application set down for rehearing: the judge had given too much weight to evidence about M's health which had not been tested in cross-examination and was not cogent enough to justify an order depriving the children of any chance of getting to know their own father.


Re M (Contact: conditions) [1994] 1 FLR 272, Times 10/11/93, Wall J
F was in prison, and had allegedly been violent towards M. The magistrates made an order for postal contact with their child C, requiring M to read F's letters to C and to send F quarterly reports on C's progress. Allowing M's appeal, the Court said M could be ordered not to impede contact, but could not be required to facilitate it nor to have contact with F herself. A postal contact order was quite acceptable, but the additional conditions were ultra vires.


Re W (Contact) [1994] 2 FLR 441, CA
When M terminated F's contact with W four years after their divorce, F sought a contact order. M said she would go to prison rather than allow contact, and the judge (relying on the "no order" presumption) made no order. Allowing F's appeal, the Court of Appeal said a child has a fundamental right to contact with both its parents unless the circumstances are exceptional, and the court cannot be put in a position of having to balance this against a party's disobedience to its orders.


Re P (Contact) (1996) Times 15/5/96, CA
Because of M's stress and anxiety, the judge refused an order for direct contact with F. The Court of Appeal allowed F's appeal and said the judge had given insufficient weight to the importance to a child of maintaining face-to-face contact with its father.


Z v Z (Refusal of contact: committal) [1996] 1 FCR 538, Judge Orrell
A child C remained with M after divorce, but F was subsequently granted an order for supervised contact. When the order was amended to allow unsupervised contact M refused to comply and declared on oath that she would not do so. The judge committed her to six weeks' imprisonment for contempt of court, but ordered a review after two days. M then agreed to obey the court's order and the judge amended the committal to three weeks' imprisonment, suspended for four months.


Re D (Contact: reasons for refusal) [1997] 2 FLR 48, CA
Non-cohabiting black F and white M had a son S; M alleged violence by F and refused to allow contact with S. F's application for a contact order was dismissed, and a further application two years later was again refused, though the judge suggested he might apply again in three or four years' time. F's appeal failed; Hale J said M's genuine fear (whether or not well-founded) was a proper reason for the judge's decision. M was not racist, S had other black positive role-models, and the judge had left the door open to a further application in due course.


Re B (Contact: stepfather's opposition) [1997] 2 FLR 579, CA
Sikh parents F and M separated a month after D's birth and subsequently divorced. M went to India with D, returning to England (now married to a new husband SF) when D was 5. F sought a contact order, but SF said this would be entirely contrary to Sikh culture and he would (regretfully) have to reject D altogether if it were ordered. The judge refused F's application for contact on the basis that a divided home would not be in D's interests, and F's appeal was dismissed. On the facts, SF was acting in good faith and not seeking to coerce the court, and the judge's decision was within the range of his discretion.


A contact order may in fact be a "no contact" order, prohibiting a named person from having contact with the child. Such an order is not common, but where it is appropriate the court is required by s.9(5) to make that rather than a prohibited steps order with the same purpose.

Prohibited Steps Orders
A prohibited steps order is an order that no step, which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. It is thus equivalent to a prohibitory injunction, but under s.9(5) the court must not make a prohibited steps order to achieve a result that could equally well have been achieved by a residence or contact order.

For example, a prohibited steps order might restrain a parent from taking a child out of the jurisdiction (where no residence order is in force), forbid a named person from having contact with the child, or prevent one parent from making decisions about the child's education or medical treatment without the agreement of the other. Note, however, that the order may only relate to action which could be taken by a parent in meeting his or her parental responsibilities, and cannot (for example) be used to prevent one parent contacting the other.

Croydon LBC v A [1992] 3 All ER 788, Hollings J
Following serious violence by F against his two children, the local authority obtained a place of safety order applied for an interim care order. The magistrates instead made a prohibited steps order forbidding F from having (and M from letting him have) any contact with the children, and prohibiting F and M from having any contact with each other. The judge allowed an appeal by the local authority and made an interim care order as they had asked, but said contact between F and M was not "a step taken by a parent in meeting his parental responsibility" and so could not properly be the subject of a prohibited steps order in any event.


M v M (Residence order: ancillary injunction) [1994] Fam Law 440, Johnson J
The district judge granted M a prohibited steps order forbidding F from allowing his mother or sister to enter the family home and interfering with M's parental activities, and from molesting M. Allowing M's appeal and granting ordinary injunctions to the same effect, the judge said these orders did not deal with "steps taken by a parent in meeting his parental responsibilities", so a prohibited steps order was inappropriate.


Re H (Prohibited steps order) [1995] 4 All ER 110, Times 8/2/95, CA
A child H was abused by J, who was cohabiting with H's mother M. The local authority obtained supervision orders in respect of H and four siblings, with a condition prohibiting contact with J. The judge also made a prohibited steps order requiring M to prevent any such contact, but ruled he had no jurisdiction to make an order against J, who was not a party to the proceedings. An appeal by the guardian ad litem and other parties was allowed: the prohibited steps order against M was inappropriate because a contact order would serve the same purpose, and a "no contact" condition cannot be attached to a supervision order. But a court can make a prohibited steps order against a non-party, though it should certainly grant leave, if such a person sought it, to apply to vary or discharge the order.


Re J (Prohibited steps order: circumcision) (1999) Times 1/6/99, Wall J
The Muslim father of a five-year-old boy J wanted him circumcised in accordance with Muslim tradition; his non-Muslim mother did not. The judge said male circumcision for religious purposes is undoubtedly lawful where both parents agree to it, but where they disagree the matter is one for the court, to be determined according to the child's welfare. In the instant case there was no intention of bringing up J as a practising Muslim, so he would make a prohibited steps order restraining the father from arranging any circumcision without the leave of the court.


Specific issue orders
A specific issue order, as its name suggests, is an order giving directions for the purpose of determining a specific question which has arisen, or may arise, in connection with any aspect of parental responsibility for a child. Such an order, for example, might enable the court to resolve a dispute about a proposed change of name, a move overseas, medical treatment, the child's education, or an abortion for a pregnant schoolgirl. Like a prohibited steps order, a specific issue order must relate to an aspect of parental responsibility and must not be used to compel a local authority to provide support nor where a residence or contact order would be appropriate.

Pearson v Franklin [1994] 2 All ER 137, Times 1/12/93, CA
F and M, although unmarried, were joint tenants of a house owned by a housing association. Following the breakdown of their relationship (but no violence) M left home with the children, and subsequently applied for a specific issue order allowing her to reside in the home in the absence of F. The judge refused such an order and M's appeal failed: a specific issue order may in principle be used to determine where a child should live, but Parliament never intended it to be used as a substitute for an ouster order. M should instead seek an order under s.15(1) requiring F to transfer to her his interest in the house for benefit of the children.


Re J (Specific issue order) [1995] 1 FLR 669, Times 21/2/95, Wall J
A 16-year-old J claimed to be a "child in need" under s.17 of the Children Act 1989, and (when the local authority refused to recognise this) sought a specific issue order directing appropriate provision. The judge said the clear intention of Parliament was that the local authority's exercise of its discretion under Part III of the Act should not be subject to judicial control except through judicial review where appropriate. In any event, the "child in need" provisions did not relate to the exercise of parental responsibilities, so a specific issue order could not be appropriate.


Re D (Contact orders: conditions) (1997) Times 5/8/97, CA
A judge made a contact order allowing a seven-year-old child D regular contact with its father F, but attached various conditions (with penal sanctions) forbidding F from molesting M or her relatives, entering their property, contacting M's employers, starting any prosecution against M, and so on. Allowing F's appeal in part, Sir Stephen Brown P said such orders might properly be made by the High Court in the exercise of its inherent jurisdiction, but it was wholly inappropriate and outside the powers of the County Court judge to impose them as conditions attached to a contact order. Conditions prohibiting F from removing D or seeking to obtain a passport for her were allowed to stand.


Conditions and directions
Section 8 orders may contain directions about how they are to be carried into effect, and may impose conditions which must be complied with by any person in whose favour the order is made, or who is a parent of the child concerned, or who has responsibility for the child, or with whom the child is living, and to whom the conditions are expressed to apply. Alternatively, the court may accept an undertaking from such a person rather than imposing conditions.

Leeds CC v C [1993] 1 FLR 269, Booth J
The stipendiary magistrate made a residence order in favour of F and a supervision order in favour of the local authority, together with a direction under s.11(7) that M's contact with the children be supervised. The judge allowed the local authority's appeal against the s.11(7) order, and said a local authority was not among those whose can be made party to such an order. (The proper order in the circumstances would have been a family assistance order under s.16.)


Re R (Residence: religion) [1993] 2 FLR 163, Times 3/11/92, CA
F was a member of the Exclusive Brethren and M was dead. The sect isolated F for some misbehaviour and subsequently expelled him; his son B10 remained with an aunt A who belonged to the sect and (because of the sect's rules) was not allowed any communication with his father. The judge made a residence order in F's favour, but with visits to A subject to her undertaking not to discuss the Brethren with B10. A's appeal to be released from her undertaking (which she had scrupulously observed) was dismissed.


Re O (Contact: imposition of conditions) [1995] 2 FLR 124, Times 17/3/95, CA
F and M were unmarried, and F had a contact order with additional conditions that M send him a photograph every three months, send progress reports from O's playgroup and reports of any significant illnesses, and allow O to receive cards and presents as appropriate. M's appeal on the grounds that she did not want to have anything to do with F was dismissed: it is well within the court's powers to compel a reluctant parent to provide information to enable the other to have meaningful contact with a child.


Other orders
A family assistance order made under s.16 of the Children Act requires a probation officer or social worker to be made available to "advise, assist and (where appropriate) befriend" the person or persons named in the order. The persons who may be named are any parent or guardian of the child, or any person with whom the child is living or in whose favour a contact order is in force with respect to the child, or the child herself. Such an order (which can last no more than six months) may be made only where the circumstances are exceptional and every person named (other than the child) has consented to it.

Re C [1996] 1 FLR 424, Johnson J
A child C lived with her aunt and uncle after her parents separated, and subsequently (now aged 12) applied for a residence order in their favour. The judge made this order together with a family assistance order aimed at reconciling C and her mother. When the local authority said it did not have the resources to carry out the family assistance order, the judge declined to make any further order to enforce it: such compulsion would not be in C's interests nor in the interests of the child care system as a whole.


Other private law orders already discussed but relevant to the upbringing of children include parental responsibility orders, adoption orders, orders appointing a guardian, and orders for financial support. In the final part of this chapter we consider a number of public law orders including care and supervision orders, emergency protection orders, child assessment orders, education supervision orders and orders for parental contact with a child in care