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Section 8 Orders When s.8 orders can be made
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
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
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.
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
When will shared residence orders be made?
o Re K (A Child) (shared residence order) : 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
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
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
However, equality of contact time does not necessarily follow. o Holmes Moorhouse v Richmond LBC : 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:
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
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
in the light of circumstances as they are or may reasonably be expected to be
? Baroness Hale
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
Family court orders are meant to provide practical solutions to the practical problems faced by separating families.
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