A specific issue order:
A disputed point may be brought before the court to enable a particular issue to be resolved.
An order may be made:
• in the course of any family proceedings in which a question arises with respect to the welfare of any child
• on a free-standing application
• with or without notice to the other parent
• in conjunction with another order in Children Act Proceedings
In considering whether to make an order, the child's welfare must be the court's paramount consideration. In relation to contested applications, the court must have regard to the welfare checklist.
The court must also have regard to the principle that delay in deciding the case is prejudicial to the child's welfare.
The court must be satisfied that making an order is better for the child than making no order at all.
It may sometimes be appropriate to make a specific issue order and a prohibited steps order. For example, a specific issue order may be made for the return of a child who has been removed from the jurisdiction and a prohibited steps order requiring the child, once returned, not to be removed again.
Restrictions on making specific issue orders
There are certain restrictions on making specific issue orders, such as:
• a specific issue order should not be made in respect of a child who has attained the age of 16 and an order should not be expressed to have effect beyond a child's 16th birthday unless the court is satisfied that the circumstances of the case are exceptional
• if an order is extended beyond or made after the child reached 16, it comes to an end when the child reaches 18: no order can continue beyond the age of 18
• an order may be made to have effect for a specified period, eg while a child attends a particular school
• the court cannot make a specific issue order while the child is in the care of the local authority
Specific issue orders have been made to resolve disputes relating to:
• medical treatment
- education— the choice of school for a child where separated parents disagree, eg state school or private school; attendance at a religious school
- permission to take a child out of the jurisdiction for a holiday if there is no child arrangements order (CAO) in force determining with whom the child is to live
- the return of a child in a abduction cases
- changing a child's name
- a child's religious upbringing
There are certain limitations on orders that may be made:
• the order must concern an aspect of parental responsibility,
• an order may not be made with a view to achieving a result that could be achieved by a Child Arrangement Order
A specific issue order may:
• contain directions as to how the order is to be carried out
- impose conditions to be complied with by any person in whose favour the order has been made
- specify the period for which the order is to have effect
Who can apply?
Parents, step-parents with parental responsibility, guardians, special guardians and anyone who is named in a Child Arrangements Order as a person with whom the child is to live (formerly known as a residence order), may apply to the court for a specific issue order without requiring the court’s permission to do so. Anyone else, including the child him/herself, will need the court’s permission to make an application for a specific issue or prohibited steps order.
An order can be for a specified length of time or last until the child reaches 16 years of age. In limited circumstances orders can last until the child is 18 years of age.
What is the procedure?
If it is not possible to reach an agreement you can apply to the court for an order. It is now a requirement that before you make an application for a prohibited steps order you must attend a family mediation information and assessment meeting (MIAM). A MIAM is a short meeting that provides information about mediation as a way of resolving disputes. A MIAM is conducted by a trained mediator who will assess whether mediation is appropriate in the circumstances. If both parties are agreeable then you can attend a MIAM together; if, however, that is not suitable then separate meetings will be held. The intention is to see whether your dispute could be resolved in mediation rather than by using the courts. You may not need to attend a MIAM if an application must be made urgently, if there are child protection concerns or issues of domestic violence.
An application is made on a specific court form, which sets out the details of all the adults and children in the case, and requires you to say what order you are asking the court to make and why. If your application is urgent it may mean you make the application without telling the other parent what you are doing, but in most cases your application with be sent to the child’s other parent and any other relevant adults. When the court receives the application, it will set a time and place for a first court appointment.
The person starting court proceedings is the applicant. The child’s other parent and any other person involved may be a respondent. The respondent(s) must file certain forms with the court to confirm they have seen the papers and should also prepare an answer setting out their case.
What happens at court?
The first court hearing is known as the first hearing dispute resolution appointment (FHDRA) and it is when the court investigates what the issues are, enquires into the possibility of settlement and gives directions about how the case should proceed if it is not possible to reach an agreement. The court might order that a CAFCASS (Children and Families Court Advisory and Support Service) officer prepares a report to help the judge at the final hearing or it might order that the child be legally represented in the proceedings. Sometimes the court will adjourn the case for mediation to take place.
If the issues cannot be sorted out the court will hold a final hearing. Here, a judge will hear evidence from the adults involved, the CAFCASS officer (if involved) and any other necessary experts and then make a binding decision.
How does the court decide what should happen?
The first concern of the court is the child’s welfare. The Children Act 1989 provides a list of considerations for the Judge who has to decide the case, which help guide them in making a decision:
• the wishes and feelings of the child concerned
• the child’s physical, emotional and educational needs
• the likely effect on the child if circumstances changed as a result of the court’s decision
• the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
• any harm the child has suffered or may be at risk of suffering
• the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
• the powers available to the court
The court must also be satisfied that making an order is better for the child than not making an order at all.
For more information, contact Fraser Brown’s family team on 0115 9888 777.