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DISPUTES BETWEEN PARENTS CONCERNING CHILDREN GeneralI guess this is going to say that the general principle is for the dispute to be resolved in whichever way is deemed most closely concerned with the welfare of the child Where there is a genetic link, the courts are very quick to make contact orders - readiness of the courts to order genetic testing is testament to this S8 CA1989 refers to orders relating to child Tax credits email about women having to disclose details of, and have their rape verified in order to claim tax credits. 76% of women who are murdered are killed by an ex partner or spouse within the first year of separation (this is why it's disgusting there's not more support for women leaving violent or indeed non violent relationships)
WELFARE PRINCIPLE-Children Act 1989, s 1 "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 (2A) the court is to presume that - unless the contrary is shown - the involvement of a parent in the life of a child will further that child's welfare (2B) involvement means involvement of some kind, either direct or indirect, but not any particular division of a child's time (3) circumstances the court shall have particular regard 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. difficulties and problem with this legislation are discussed below and in the lecture notes Re B (A Child) (Residence Order)  UKSC 5 (note reluctance to dilute welfare test) - the fall of presumptions All consideration of the importance of parenthood in disputes concerning residence of children had to be rooted in examination of what was in the child's best interests This case followed on from the judgment in Re G (2006), but directly opposed it, which helped debunk the presumption that a child would ordinarily be best raised by its biological parents (as was held in Re G) o This can't necessarily be said to be true, as it is overwhelmingly the case that most children are raised by their biological parents - this is essentially just a coincidence Child (B) was 4 years old and had lived with maternal grandmother (G) since birth, although saw father (F) every weekend. Magistrates court had made residence order in G's favour, but F appealed this The appellant judge relied on the judgment in Re G which held that ordinarily children will be best raised by their biological parents. This judge also commented that while G's care would be better for the child, F's care would be good enough
-----o Incredibly problematic because children's welfare is supposed to be "paramount consideration" - not just ensuring that care is "good enough" However on this basis the judge transferred residence to F. appeal made to CA who upheld appellant judges' decision but granted leave to appeal to HL, and a stay was made on the formal transfer of residence until this appeal. As a condition of the stay, the contact F had with B was increased to Thursday to Monday each week G's appeal allowed - referring to the Re G judgment in this way was inappropriate and the statement that it was the "right" of the child to be brought up in the home of his natural parent was insincere to the principle of welfare of the child being the paramount consideration o Additionally, reference to the child's "rights" rather than his welfare is to completely betray the point of the whole principle - it diverted decision-makers from consideration of the child's welfare which was obviously the most important thing Appeal also allowed on the basis that it was inappropriate to grant residence to F based on the fact that his parenting would be "good enough" - if welfare of the child is paramount, the court should be looking to determine the "best interests" of the child, not just the bare minimum which would be acceptable Nicholls, L's comment in Re G that the rearing of a child by a biological parent was firmly set in the context of the child's welfare did nothing more than really just refer to the fact that most children are raised by their biological parents. While this might be the most common way a child is raised, this is not necessarily applicable to those family set ups where there are disputes because these are usually atypical All consideration of the importance of parenthood in private law disputes about residence had to be firmly rooted in an examination of what was in the child's best interests - that was the paramount consideration There was reason to believe that, because B had lived his whole life with G and had naturally formed a strong bond with her, in breaking this bond his current stability would be threatened (which is obviously not in his best interests). F might be capable of meeting B's needs, but the actual transferring of B from G to F would constitute far more than a change of address and HL considered that maintaining the status quo would be best for the child, though also acknowledged that this maintenance would not always be given the weight it was given in this case Re G  EWCA Civ 1233 (noted Taylor (2013) CFLQ 336) Jewish couple, early in marriage took very strict conservative line in relation to religion, throughout marriage the mother became less strict and moved away from this "ultra-orthodox" interpretation of Judaism. On separation it needed to be determined whether child would have to align with father's or mother's view. Mother's view won out because the school the father preferred taught very damaging religious and gender roles i.e. women are to be mothers and home makers. Mother's school was orthodox but not ultra-orthodox i.e. still encouraged that girls can have a career etc Judges reasoning took 4 strands: o Educational opportunity o Acceptance of the analysis by the report of the emotional impact on C o Although child might have difficulty making a decision whether or not to embrace mother's lifestyle in future, they would have the option to return to the father's ultra orthodox roots if they desired, from the mother's proposed lifestyle o Final line of thought was that on balance, the child's interests were best served by the mother's proposals The court would only be entitled to interfere with the earlier judge's ruling if it was held that he was plainly wrong in his approach but far from this, in all probability he was correct in the decision to which he came Re E-R (A Child)  EWCA Civ 405 - earlier judge had made a presumption in favour of a surviving parent when making a child arrangements order for a child whose other parent had died - there was no such presumption, this fact was something to be given "appropriate weight" when determining a child's best interests, but did not result in a presumption Child's two parents had both had parental responsibility but had separated on bad terms. The child continued to live with the mother but the mother was diagnosed with terminal cancer and moved in with a friend (H) to support herself and the child as she grew more ill. When it became clear that the mother's death was
--imminent, H became the child's primary carer and the mother named H as the child's testamentary guardian (the person who would look after the child once she died) and H applied for a special guardianship order when the death became closer Judge made interim order to confer parental responsibility on H in case mother died before return date for application. Application was refused and judge made a child arrangements order for the child to live with her father and have extensive contact with H, stated that there was a "broad natural parent presumption" favouring a child living with her natural parent. The mother died before the appeal took place On appeal by H, it was allowed. o Welfare of child was paramount consideration - no "parental right" or "broad natural parent presumption" which would override this consideration (see Re G and Re B above - but these were not considered, though they should have been) o Much like there is no natural parent presumption, there is also no presumption in favour of a person who has been living the with child for a significant time (Re G) o Each of the above would be attributed appropriate weight when determining the child's best interests; there was potential that one of these factors might be determinative, but it would depend on the unique facts of each case In this case, because the child had a parent who was alive and had parental responsibility, and because there was no child arrangements order appointing H as the child's guardian, such an appointment could not take place. H had, however, gained parental responsibility from the judge's August order, though not from her being named as the testamentary guardian - the mother expressing a preference for who her child would be raised by after she died did not create a preference in that person's favour though this was another factor which would be given appropriate weight Special attention should be paid when determining such cases by virtue of the obvious consequences and complexities the child was likely to suffer from having lost her mother Obiter (but significant): The father had had to represent himself. The case was yet another example of the consequences of treating private law children cases as essentially straightforward matters which parents should sort out themselves. If the complexities of the instant case had proved too much for the skilled professionals involved, the father had little hope in trying to represent himself
CHILD ARRANGEMENTS ORDERSChildren Act 1989, s 8 (as amended) (1) child arrangements order" means an order regulating arrangements relating to any of the following---
(a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person; "a prohibited steps order" means 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; [ and] 2
[...] 2 "a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. (2) In this Act "a section 8 order" means any of the orders mentioned in subsection (1) and any order varying or discharging such an order. (3) For the purposes of this Act "family proceedings" means any proceedings---
(a) under the inherent jurisdiction of the High Court in relation to children; and (b) under the enactments mentioned in subsection (4), but does not include proceedings on an application for leave under section 100(3).Children and Families Act 2014, ss 10, 11, 12 and 17. Presumption in favour of contact 10 - must attend family mediation information and assessment meetings (MIAM)-
-11 - inserts an amendment into Children Act 1989 which creates a presumption in favour of contact between the parent and the child. "some kind" of involvement, "either direct or indirect, but not any particular division of a child's time" 12 - removal of "contact orders" and "residence orders" and instead replace with "child arrangements orders" which basically combines the above
Reform: Background to the Children and Families Act 2014 Hunt, 'Through a glass darkly: the uncertain future of private law child contact litigation' (2012) 33 JSWFL 379
- At least 2/3 of people litigating had serious welfare issues i.e. drug abuse, negligent, domestic violence
- These specific concerns cannot just be agreed upon Kaganas "When it comes to contact disputes, what are family courts for?" (2010) Current Legal Problems 63 (skim)
- The population which does litigate are very very different from those who don't McFarlane https://www.judiciary.gov.uk/wp-content/uploads/2014/06/speech-by-rt-hon-sir-andrew-mcfarlanememorial-lecture.pdf , (2014) 44 Fam Law 1264
- never a presumption in favour of a residence order - before coalition election, fathers' rights group were putting pressure on courts saying court had unfair preference for mother
- 2014 changed act name to try and take away idea of winners/ losers
- contact and residence orders in 1989 to try and take away idea of winners/ losers
- wanted to change rule that you had to go to mediation, information and assessment meeting (MIAM) o hoping that after this meeting they will make their own decision and won't have to go to courts o even pre-this 90% of parents didn't litigate Child Arrangements Orders a. With whom is the child to live and spend time (Residence)?
- Re G (Children) (Residence: Same sex partner) (see 3.1, above) (in parenthood handout 1)
- Baroness Hale in Re G (Children) (Residence: Same-Sex Partner) distinguished three key elements of parenthood. o (1) Legal Parenthood (who in law is the parent) o (2) Genetic Parenthood (whose sperm and egg created the child) o (3) Social Parenthood (who carries out the day-to-day nurturing of the child)
- Hale placed weight on the biological link which only one of the two women had - is this right?
- G and W had been in same-sex relationship, G had borne two children through anonymous sperm donor, when they split the children stayed with G, having regular contact with W and were happy in this situation
- In breach of the order imposed by the court G moved them from the Midlands to Cornwall and revoked contact with W. W issues applications to locate the children and for a residence order, which was granted and was to the effect that the current arrangement was reversed (i.e. they were to reside with W and have contact with G) as the judge had no confidence that if the children stayed with G in Cornwall they would be allowed to maintain a relationship with W
- On appeal was held that the court had allowed the unusual context of the dispute to distract them from the important principles, the key consideration of which should have been the children's welfare which should have been paramount
- G's claim as the "natural mother" was significant but did not create a presumption in her favour. Evidence showed the children were happy and doing well in G's home and that while G had evaded the court's order, since she had been located she had reinforced and abided by the order
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