Many people are often unsure as to when an application under Section 8 of the Children Act 1989 should be issued.
If contact arrangements for children can be dealt with by agreement by discussing matters directly with the other parent or by attending mediation then there is no need for the Court to become involved but, unfortunately, sometimes a party may feel that they have no alternative but to refer matters to the Court. In some instances, there are serious welfare concerns relating to the child or there is an element of urgency relating to the matter so a party feels compelled to issue proceedings. There are also times when parents are able to agree most of the arrangements between themselves but one parent prefers to have an Order in place setting out the specifics of the arrangements.
It is sensible to try to exhaust all the options available before getting the Court involved. Sometimes, however, the involvement of the Court is crucial.
The law has recently changed and as such, it was now a prerequisite that prior to making an application to the Court a Mediation Information & Assessment Meeting (MIAM) be attended prior to the application being issued. There are some exceptions to this, however.
The Court has changed the way in which they describe the Orders that they are capable of making in relation to children matters. We used to talk of Custody or Residence and Contact Orders whereas the Court now makes Child Arrangement Orders setting out arrangements that will be made for the child as to where the child shall live and with whom the child should spend time. The Court is reluctant to place labels on arrangements as far as children are concerned and that is why they have removed the Residence and Contact Orders.
The Court have a duty to promote, encourage and facilitate child contact, provided that it is in the best interests of the child. In order to determine this, the Court would have to consider what is known as the Welfare Checklist.
The Child Welfare Checklist is as follows:-
(1) The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding)
(2) Physical, emotional and educational needs.
(3) The likely effect of any change in circumstances.
(4) Age, sex, background and any characteristics of the child which the Court considers is relevant.
(5) Any harm which the child has suffered or is at risk of suffering.
There are usually a number of hearings before a Final Order is made in the matter and parties are always given the opportunity to deal with matters by agreement during the proceedings.
Each case is different and you should speak to a specialist Solicitor to discuss the next steps in your matter. Court proceedings can be both expensive and lengthy and carry a degree of uncertainty. It is, therefore, even more, important that you speak to one of our specialist Solicitors.
Published 11/12/18