Navigating Children Act 1989 Section 8 Orders
When family dynamics shift and parents separate, the well-being of any children involved becomes the paramount concern. In England and Wales, the Children Act 1989 provides the legal framework for courts to make decisions regarding children, with Section 8 being particularly central. This section empowers the court to issue various orders designed to regulate arrangements for a child’s care, ensuring their welfare remains at the forefront.
Section 8 orders encompass several distinct types, each addressing a specific aspect of a child’s life. A Child Arrangements Order (CAO) is the most common, determining who a child lives with (formerly known as residence) and who a child spends time with (formerly known as contact). These orders are crucial in establishing routine and maintaining relationships with both parents. A Specific Issue Order allows the court to make decisions about a specific question that has arisen in connection with a child’s upbringing, for example, which school they attend, whether they can undergo a particular medical treatment, or if they can be taken on an international holiday. Conversely, a Prohibited Steps Order prevents a specific action from being taken by a parent, such as unilaterally changing a child’s surname or taking them out of the country permanently without the other parent’s consent or court permission. Finally, a Family Assistance Order offers short-term support and guidance from a CAFCASS (Children and Family Court Advisory and Support Service) officer or social worker to families experiencing difficulties in implementing a Section 8 order.
Underpinning all decisions made by the court under the Children Act 1989 are three fundamental principles. The first, and most crucial, is the Welfare Principle. This principle dictates that the child’s welfare is the court’s paramount consideration. Every decision, every order, must be made with the child’s best interests as the ultimate goal, overriding the wishes and feelings of the parents if they conflict with the child’s welfare.
The second principle is the No Order Presumption. This presumes that, in general, it is better for a child for the court not to make an order, unless doing so would be better for the child than making no order at all. This encourages parents to reach agreements amicably without court intervention, promoting co-parenting and reducing conflict.
The third principle is the Principle of Avoiding Delay. The Act emphasises that any delay in making decisions about a child’s future is likely to prejudice their welfare. Children need stability and certainty, and protracted legal proceedings can be highly detrimental to their emotional well-being.
When applying the paramount Welfare Principle, the court considers a range of factors, commonly referred to as the “Welfare Checklist” found in Section 1(3) of the Children Act 1989. These factors include:
1. The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding): As children mature, their views are given increasing weight.
2. The child’s physical, emotional and educational needs: This covers everything from housing and healthcare to schooling and emotional support.
3. The likely effect on the child of any change in their circumstances: Stability is generally preferred, but sometimes change is necessary for a child’s welfare.
4. The child’s age, sex, background and any characteristics which the court considers relevant: This ensures a holistic understanding of the child’s individual circumstances.
5. Any harm which the child has suffered or is at risk of suffering: The court must protect children from harm.
6. How capable each of the child’s parents, and any other relevant person, is of meeting the child’s needs: This assesses the ability of those caring for the child to provide adequate care.
7. The range of powers available to the court under this Act in the proceedings concerned: This ensures the court considers all appropriate options.
In conclusion, Section 8 of the Children Act 1989 provides the court with vital tools to safeguard children’s welfare during family breakdown. By adhering to the Welfare Principle, the No Order Presumption, and the Principle of Avoiding Delay, and by diligently applying the Welfare Checklist, the court strives to make orders that genuinely serve the best interests of the child, promoting their stability, development, and overall well-being.