The Children Act 1989 Guidance and Regulations

The Children Act 1989 Guidance and Regulations

Volume 1
Court Orders

IN THE MATTER OF G (a Child)

Case Study: Year 2008

Do everything wrong and then do everything right.

The Court’s duty when considering whether to  make an order – Paras 2.73-2.75…page 25

The court’s duty when considering whether to make an order.

2.75 It should be noted, however, that the welfare checklist in section 1(3) does not apply in all ‘family proceedings’, but only in contested applications for a section 8 order or any applications for special guardianship orders or proceedings under Part 4 of the Act.

The relationship between private law orders and public law proceedings
2.76. The court may make a section 8 order as an interim measure when a care
application is pending. Section 11(3) provides that the court may make a section 8
order at any time during the course of the proceedings in question even though it is
not in a position finally to dispose of those proceedings,Section 11(7) enables a
section 8 order to be made for a specified period. The court could therefore, for
example, regulate the child’s contact with his parents by means of a contact order or
prevent it altogether by means of a prohibited steps order. It should be noted
however, that if, pending an application for a care or supervision order the court
decides to make a residence order with respect to the child, it must also make an
interim supervision order “unless satisfied that his welfare will be satisfactorily
safeguarded without an interim order being made” (section 38(3))

5
Risk Assessment
2.72 The Children and Adoption Act 2006 inserted a new section 16A into the Act,
which places a duty on a Cafcass practitioner to carry out a risk assessment in
relation to a child in certain circumstances and to provide a report to the court in
respect of that risk assessment. The circumstances in which a risk assessment
should be carried out are where the officer is carrying out a function in connection
with family proceedings in which the court has power to make a Part 2 order under
the Act, or in which a question with respect to such an order arises, or the officer is
carrying out a function in connection with an order made in such proceedings and the
officer is given cause to suspect that the child concerned in those proceedings is at
risk of harm. A risk assessment is defined as an assessment of the risk of the child
suffering the harm that is suspected. The risk of harm to the child may relate directly
to harm experienced by the child themselves or to harm caused by the witnessing of
harm, perhaps to a parent who is experiencing domestic violence.
The court’s duty when considering whether to make an order
2.73 There are several situations where the court is likely to consider it better for
the child to make an order than not. If the court has had to resolve a dispute
between the parents, it is likely to be better for the child to make an order about it.
Even if there is no dispute, the child’s need for stability and security may be better
served by making an order. There may also be specific legal advantages in doing
so.
2.74 The welfare principle, set out in section 1(1) of the Act, requires that
whenever 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. Not
all proceedings affecting children’s upbringing or property are governed by the
welfare principle. For example, it is expressly excluded by section 105(1) from
applications for maintenance for a child, and financial issues on divorce (section
25(1) of the Matrimonial Causes Act 1973 provides that the child’s welfare shall be
the court’s “first” consideration). On an application for an order under section 1 of the
Matrimonial Homes Act 1983 the welfare of the child is neither first nor paramount. It
is merely one of the factors to which the court must have regard.
2.75 It should be noted, however, that the welfare checklist in section 1(3) does not
apply in all ‘family proceedings’, but only in contested applications for a section 8
order or any applications for special guardianship orders or proceedings under Part 4 of the Act.

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Tags: The Children Act 1989 Guidance and Regulations, private law orders, public law proceedings

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2 thoughts on “The Children Act 1989 Guidance and Regulations

  1. Pingback: The Children Act 1989 Guidance and Regulations | Public Law Children Act Cases | Scoop.it

  2. Pingback: The Children Act 1989 Guidance and Regulations | Parents Rights Blog

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