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Private Disputes over Children (3.3) - Coggle Diagram

- - - - Determining the welfare of a child:
        
        What factors does the court consider when deciding what is best for the child?
        
        What does a child need? How might this change depending on their age and circumstances?
        
        How does the law balance the goal of respecting the autonomy of families to choose how to raise their children, with the goal of protecting children?
        
        a) The ascertainable wishes and feelings of the child
        
        b) The child's physical, emotional and education needs
        
        c) The likely effect of any change in their circumstances
        
        d) The child's age, sex and background and relevant characteristics
        
        e) Any harm the child is at risk of suffering
        
        f) How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
        
        g) The range of powers available to the court to make other orders apart from those sought by the parties
        
        B v B (Minor: Resident Order: Reasons for Decision) [1997]:
        
        Not necessary to consider all guidelines, just the relevant ones
        
        Re G (Children) (Residence: Same Sex Partner) [2006]:
        
        In difficult cases, it is helpful to consider each item on the checklist, but it is useful to remember that the court can take into account other factors not on this list
      - The 'paramount consideration'
        
        This means that after balancing all the parties' rights and their arguments, the court must place the child's welfare above all the other factors
        
        Under human rights law, everyone has a right to respect for their private and family life (Art 8 European Convention on Human Rights)
        
        After considering the parties' Article 8 rights, the court will decide the outcome that best meets the child's welfare needs
        
        In other jurisdictions, 'welfare' is often known as 'best interests'
    - - Law Commission:
        
        Prolonged litigation about their future is deeply damaging to children
        
        Brings uncertainty for them
        
        Harms the relationship between their parents and their capacity to co-operate with each other in the future
        
        C v Solihull MBC [1993]:
        
        'Planned and purposeful delay' for assessments and investigations may be beneficial
        
        Judges are responsible for case management and fixing a 'timetable for the child' and ensuring this is kept on
        
        Undue delay may be in breach of Art 6 ECHR - right to a hearing 'within a reasonable time'
      - The problem of delay:
        
        Currently 80,000+ children caught up in private law proceedings
        
        In 2024, average case duration in private family law = 43.3 weeks
        
        Court delays can increase tension between the parties, which undermines a collaborative and child-centered approach
    - - Dawson v Wearmouth [1999]:
        
        Application by Mother to change child's surname
        
        Lord Mackay: The court should only make an order if there is evidence that doing so will improve the child's welfare
        
        Re X and Y [2001]:
        
        The burden is on the party applying for an order to make a positive case that on balance of probabilities it is in interests of the child to make an order
        
        Re G [2005]:
        
        Thorpe LJ: S.1(5) does not create a presumption one way or the other, it demands that before the court makes an order it must ask the questions: Will it be better for the child to make the order than make no order at all?
- - - - 'Entitled applicants'
        
        Any person named on a CAO (lives with) can apply for any S8 order (S.10(4))
        
        The following S.10(5) applicants can apply for a CAO only:
        
        any party to a marriage/CP to whom the child is a child of the family
        
        any party who has lived with the child for 3+ years
        
        any person who has the consent of either: a) all of the people, named on a CAO with whom the child lives, b) the LA (if a cared-for child), c) all of those with PR
        
        S.10(5) applicants can apply for CAO (live with) only:
        
        LA foster parent with whom a child has lived with for a period of at least 1 year
        
        A relative of the child with whom the child has lived for a period of at least 1 year (S.10(5B))
      - 'Leave of court'
        
        Who might apply?
        
        Grandparents
        
        Extended relatives (aunts, uncles, etc)
        
        When will the court agree to grant leave?
        
        Nature of application
        
        Applicant's connection/relationship with the child
        
        The risk of the application's disruption to the child's lives: would the application be harmful
    - - Barred applications:
        
        Assessing Risk of Harm to Children and Parents in Private Law Children Cases (Ministry of Justice 2020):
        
        "The evidence suggested that orders made under S.91(14) of the Children Act 1989 ('barring orders') are ineffective to protect victims from further abuse through repeated applications for child arrangements orders. Long-standing case law has established that these orders are exceptional, with the result that the high threshold for obtaining an order is perceived to be too high, and the threshold for leave to apply once an order is made is perceived to be too low"
  - - - Prohibited Steps Order (PSO):
        
        An order to stop a parent from taking a particular action, such as:
        
        Removing a child from the jurisdiction
        
        Relocation within the UK
        
        Taking the child to do certain activities
        
        Changing their name without the consent of the other parent
        
        Can also be related to issues of PR, but has a specifically preventative dimension
        
        Can also restrain 3rd parties: Re H (Children) (Residence Order Condition) [2001] - an order made to stop an ex-cohabitant contacting the children
      - Specific Issue Order (SIO):
        
        An order determining a specific question that needs to be resolved, such as:
        
        Educational decisions
        
        Medical treatment
        
        Religious upbringing
        
        Overseas travel and relocation
        
        Name changes
        
        Participation in certain activities
        
        Usually related to a singular issue
        
        Court has the power to ensure compliance, including imposing fines, imprisonment
- - - - Re H-N [2021]:
        
        Estimated 40% of court disputes involved allegations of DA
        
        Judges are required to understand the nature and extent of DA and its effects on children
        
        Issues in dispute should be identified early and dealt with by findings of fact
      - K v K [2022]:
        
        Fact finding hearings are necessary where the outcome would affect the welfare decision
        
        Not a proportionate use of court's time if the allegations are not relevant to the child's welfare
  - - - DAA 2021: Is it working?
        
        Mothers are being held to account for 'failing to protect' children from abusive fathers (Stewart & Arnull, 2023) outweighs the responsibility attributed to the father (Morrison & Houghton 2022)
        
        Lack of resources and information of what constitutes safe parent-child contact arrangements (Smith, Olive & Wilson, 2023)
      - DAA 2021: Is it working? Everyday Business
        
        Study across 3 Family Court sites, reviewed 300 child arrangement case files, 100 case hearings, focus groups with DA survivors, interviews with judges, magistrates and Cafcass/Cafcass Cymru officers
        
        Victim-survivors reported being dissuaded from raising allegations of DA due to suggestion that it would have 'no impact' on contact; left without representation
        
        Prevalence of outdated attitudes amongst some legal professionals in privileging physical violence over other forms of abuse, such as coercive and controlling behavior
        
        Reform promised in Harm Report (2020) remains unfulfilled, demands and urgent action to better protect adult and child victims