Other Orders available to the Court in Family Proceedings
| Author | Safda Mahmood/Julie Doughty |
| Pages | 173-188 |
The CA 1989 empowers the court to make certain orders of its own volition in ‘family proceedings’, defined in section 8(3) and as including Parts I, II and III; the Matrimonial Causes Act 1973; the Family Law Act 1996; the Adoption and Children Act 2002; and others. There is a menu of orders available in family proceedings (see Table 13.1) from which the court may choose, subject to the principles of section 1 of the CA 1989. Note that the court should make no order unless it is necessary for the welfare of the child, see Chapter 2. The court cannot, however, intervene in family proceedings to impose orders for care, supervision, secure accommodation, emergency protection or child assessment, in the absence of an application by a local authority.
13.1 Orders in family proceedings
Family assistance orders require no application, but the parties must agree to their making. Special guardianship orders may be made of the court’s own volition, but require the consent of the person in whose favour it is made, see Chapter 3.
13.2 Section 8 orders
Section 8(1) of the CA 1989 created the original section 8 orders: contact, prohibited steps, residence and specific issue, all available in all family proceedings. In April 2014, orders for contact or residence were replaced by child arrangements orders. Child arrangements orders regulate arrangements relating to where, when, and with whom a child is to live, spend time or otherwise have contact. The court may regulate, on an application or of its own volition, the child’s residence and contact with others; prohibit specified steps without leave of the court; and deal with any specific issues arising in the child’s upbringing.
Family proceedings (section 8(4) of the CA 1989)
Orders available without application Orders available only by application
Table 13.1
Menu of orders available in family proceedings
Any proceedings under the inherent jurisdiction of the High Court in relation to children
Parts I, II and IV of the CA 1989
Matrimonial Causes Act 1973
Schedule 5 to the Civil Partnership Act 2004
Adoption and Children Act 2002
Domestic Proceedings and Magistrates’ Court Act 1978
Schedule 6 to the Civil Partnership Act 2004
Part III of the Matrimonial and Family Proceedings Act 1984
Family Law Act 1996
Child arrangements orders, specific issue or prohibited steps – if no care order in force (section 8 of the CA 1989)
Guardianship (section 5 of the CA 1989)
Family assistance orders (section 16 of the CA 1989)
Direction to the local authority to investigate (section 37 of the CA 1989)
Welfare report (section 7 of the CA 1989)
Special guardianship (section 14A of the CA 1989)
Application by father, second female parent or step-parent for parental responsibility (sections 4 of the CA 1989)
Termination of parental responsibility (section 4 of the CA 1989)
Financial provision (section 15 of the CA 1989)
Care or supervision (section 31 of the CA 1989)
Education supervision (section 36 of the CA 1989)
Child assessment (section 43 of the CA 1989)
Emergency protection (section 44 of the CA 1989)
Sections 11 and 12 of the Crime and Disorder Act 1998
Direction to the local authority to investigate (section 37 of the CA 1989)
Non-molestation order (section 42 of the Family Law Act 1996)
Exclusion requirement (section 38A or section 44A of the CA 1989)
Recovery order (section 50 of the CA 1989)
Child arrangements order regarding with whom the child will live, where there is a care order in force (section 8 of the CA 1989)
Adoption and placement orders (Adoption and Children Act 2002)
Occupation order (sections 33–38 of the Family Law Act 1996)
Child safety order (sections 11 and 12 of the Crime and Disorder Act 1998
176 Child Care and Protection: Law and Practice
Some applicants are entitled to apply, and others must first seek the leave of the court. The following are entitled under section 10 of the CA 1989 to apply for any section 8 order:
(a) any parent or guardian, or special guardian of a child, section 10(4)(a) (this will include the unmarried father of a child whether or not he has parental responsibility); and section 10(4)(aa), any person who by virtue of section 4A has parental responsibility for the child;
(b) any person in whose favour a child arrangements order with residence, or an older residence order is in force with respect to the child, section 10(4)(b).
The following are entitled to apply for child arrangements orders (but not a prohibited steps order or a specific issue order):
(a) any party to a marriage or civil partnership (whether or not subsisting) in relation to whom the child is a child of the family, section 10(5)(a) (this provision enables a step-parent to seek an order);
(b) any person with whom the child has lived for a period of at least 3 years, section 10(5)(b) (section 10(10) provides that the 3-year period need not be continuous but must have begun not more than 5 years before, or ended more than 3 months before, the making of the application);
(c) any person who:
(i) in any case where a child arrangements order in force with respect to the child regulates arrangements relating to with whom the child is to live or when the child is to live with any person, has the consent of each of the persons named in the order as a person with whom the child is to live:
(ii) in any case where the child is in the care of a local authority, has the consent of that authority; or
(iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
(d) any person who has parental responsibility for the child by virtue of provision made under section 12(2A).
Under sections 10(5A) and 10(5B) of the CA 1989, added by the CYPA 2008, respectively, a relative of a child is entitled to apply for a child arrangements order regulating with whom the child will live if the child
has lived with the relative for a period of at least one year immediately preceding the application.
13.2.1 Leave to apply
Any other person needs leave to apply for an order under section 8 of the CA 1989, including the child. The court must be satisfied that a child applicant has sufficient understanding to make the proposed application (section 10(8)). FPR 2010 PD 16A sets out matters which the court will take into consideration when deciding if it is the child’s best interests to be made a party under rule 16.2. An application for a child arrangements order, specifying living with, in respect of a child who is subject to a care order, if successful, would have the effect of discharging the care order.
Note that in Re A (Care: Discharge Application by a Child) [1995] 2 FCR 686, Thorpe J held that a child’s application to discharge care was not one which required leave of the court. See also Re W (A Child) (Care Proceedings: Child’s Representation) [2016] EWCA Civ 1051, [2017] 2 FLR 199 regarding a child’s own application.
13.2.2 Considerations on application for leave
Where the person applying for leave is not the child, section 10(9) of the CA 1989 applies. This requires that on applications for leave the court should have regard to various considerations which do not include the paramountcy principle. On the issue of leave, the...
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