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Section 8 Orders Notes

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Section 8 Orders When s.8 orders can be made

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In private cases involving children, the courts may make one of the orders mentioned in s.8 of the CA 1989. o A s.8 order cannot be made in respect of a person over the age of 18 o CA 1989 s.9(6): If the child is 16/17 then apart from residence orders, s.8 orders should not be made unless the circumstances are exceptional
? E.g. Re M (A Minor)(Immigration: Residence Order) - b/c M had no relatives living in the UK, this was sufficiently acceptable to justify the making of an order until he was 18 The residence order

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Effect o CA 1989(1):
? A residence order is an order settling the arrangements to be made as to the person with whom a child is to live o Normally it will be made in favour of a parent, but can in fact be made in favour of anyone
? It confers parental responsibility on whoever it is made in favour of, if they do not already have it

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But once it is revoked, parental responsibility also disappears w/o a separate order to that effect.
? s.12(1): If an order is made in favour of an unmarried father, the court is obliged to make a separate order for parental responsibility.

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Shared Residence Order o S.11(4):
? A residence order can be made in favour of two people (even if they do not live together) o This order requires the child to spend a certain amount of time with one person, and a certain amount of time with another
? It is debateable when a shared residence order is appropriate, vs. separate residence and contact orders

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When will shared residence orders be made?
o Re K (A Child) (shared residence order) [2008]: F applied for a ruling that his son G, a six year old, should divide his time equally between the homes of F and M and that the ruling should be expressed as terms of an order for shared residence in favour of both parents. Their current contact arrangement afforded to the father about 40% of G's time and, thus, to the mother about 60% of it.
? Ward LJ

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A shared residence order is not apt only where the children will be alternating between the two homes equally o Equality of contact time and shared residence are not issues which stand or fall together - they are separate o A shared residence doesn't technically give one parent greater control than the other, but there is a danger of one parent using it to interfere and disrupt the other's parenting
? So even if a parent is given substantial contact, sometimes a shared residence order is not appropriate if this might occur.
? Wall LJ

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A shared residence order emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. o The order can have the additional advantage of conveying the court's message that neither parent is in control
? and that the court expects parents to co-operate with each other for the benefit of their children

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However, equality of contact time does not necessarily follow. o Holmes Moorhouse v Richmond LBC [2009]: The parents were granted a shared residence order which provided that the children should spend alternate weeks and half of their school holidays with each parent. C applied to the LA for accommodation as a homeless person through statute, contending that he was in priority need since dependent children "might reasonably be expected to reside" with him. The local authority rejected his application.
? Lord Hoffmann:

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Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent o Indeed the CoA recently approved the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father,
? even though the child actually stayed with him only on alternate weekends

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When a court determines any question with respect to the upbringing of a child, the child's welfare is the paramount consideration o But paragraph (f) also requires the court to consider "how capable each of his parents ... is of meeting his needs". o If a parent has no accommodation, the courts has no power to conjure it into existence
? The court's decisions as to what would be in the interests of the welfare of the children must be taken

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in the light of circumstances as they are or may reasonably be expected to be
? Baroness Hale

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This order should not have been made. It is one thing to make such an order where each parent has a home to offer the children, even if it's not quite up to the standard the child had before. o It is another thing entirely to make such an order when one parent is living in the family home
? and the other parent has no accommodation at all to offer them and no money with which to feed and clothe them

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Family court orders are meant to provide practical solutions to the practical problems faced by separating families.

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