The relevant
legislation covering this area of law is The Children (NI) Order 1995.
Article 8 Orders replace the old ‘custody and access’ orders. There are 4
main types of Article 8 Order which are known as Residence, Contact, Prohibited
Steps and Specific Issue Orders. Where appropriate a parent can also apply for
what is known as an Article 7 Parental Responsibility Order. Further details of
all these Orders are set out below.
What is a Residence Order?
A
Residence Order settles the arrangements to be made as to the person with whom
the child should live. A Residence Order is not a “once and for all” Order as
the old custody order often appeared to be. A custody order usually meant that
the custodial parent had the right to the everyday care and control of the
child, together with the power to make the most routine and some major
decisions about the child’s life. Although custody orders could always be
altered, the Court would require highly convincing evidence before it could be
persuaded that a transfer of custody from one parent to another was justified.
Final Residence Orders can ordinarily be made up until the child reaches the
age of 16, however, if circumstances change, an application can be made to the
court to vary any Order made. Residence Orders can also be made in favour of more
than one person, for example, to reflect a shared care arrangement and they can
also be obtained on an “ex-parte” basis ie. on a short term emergency basis
without the Respondent being present if the facts of a case justify it. This
will only be granted for a short period of time and in particular circumstances
where there is an urgent requirement for such an Order to justifiably be made
with the case listed for an inter parties hearing at a later date.
What is a Contact Order?
A
Contact Order replaces the old “access order”. They require the person with
whom the child is living to allow the child to visit or stay with the person
named in the Order, or for that person and the child otherwise to have contact
with each other. Where the parties are unable to agree over the degree of
contact which should take place with the non-residential parent, either party
may ask the Court to determine the extent of the contact arrangements. Contact
Orders can stipulate not just the frequency and duration of contact, but can
also address issues such as supervision of contact, venue of contact, holiday
contact and other such specific issues where appropriate.
What is a Prohibited Steps
Order?
A
Prohibited Steps Order directs that no step which could be taken by a parent in
meeting his parental responsibility for a child, and which is of a kind
specified in the Order, must be taken by a person without the consent of the
Court. An example of a Prohibited Steps Order would be an order stopping a parent
removing their child from Northern Ireland or from changing their school
without the other parent’s consent.
What is a Specific Issue
Order?
Specific
Issue Orders, like Prohibited Steps Orders, are designed to be made either on
their own, or together with a Residence or Contact Order.It enables the Court
to give directions to determine a specific issue which has arisen, or may
arise, in connection with any aspect of parental responsibility for a child,
for example, the decision to change a child’s surname, choice of schools,
religious upbringing, or to consent to medical treatment.
What is a Parental
Responsibility Order?
Parental
Responsibility is defined as “All the rights, duties, powers, responsibilities
and authority which by law a parent of a child has in relation to a child and
his property”. This covers the whole range of parental rights and duties and in
this respect it is similar, but not identical to, the old concept of ‘legal
custody’. The Order does not attempt to define what these rights, duties,
powers etc. actually are as it was felt that to do so would be a practical
impossibility as the list ‘must change from time to time to meet differing
needs and circumstances’ (Law Commission). Applying previous legislation and
Court decisions parental ‘rights’ may include the right to determine where the
child should live, the child’s education, the child’s religion the right to
discipline a child, consent to the child’s marriage, authorise medical
treatment, administer the child’s property, appoint a guardian, agree to
adoption and consent to a change in a child’s name. Parental ‘duties’ include
the duty to protect a child, maintain the child, secure the child’s education,
and to control the child. A mother automatically has parental responsibility for
her child. Fathers do not always have automatic parental responsibility for
their child, for example if they are not married to the mother and are not
named on the child’s birth certificate, and we can advise you on how to obtain
parental responsibility either by agreement, or by way of a court order, if
necessary.
What else can the Court do?
The
supplementary provisions set out in the Children Order are intended to preserve
the greatest possible flexibility of the Court’s powers in relation to Article
8 Orders so that the Court can make interim Orders, delay implementation of
orders or attach other special conditions to orders where the circumstances
call for it. The Court can for example, direct that the Order be made to have
effect for a specified period, or contain provisions which are to have effect
for a specified period.
Principles Governing
Children’s Law in Northern Ireland
There
are a number of key principles which we will advise you on in respect of
determining any of the issues outlined above. The main principle to be upheld
is that the child’s welfare is paramount. In ensuring that the child’s welfare
is met any parties involved in negotiating agreements or making court orders
should have regard to what is known as ‘the welfare checklist’ which sets out
the factor to which regard must be paid in making decisions for children which
are as follows:
-The
wishes and feelings of the child.
-His/her
physical and emotional needs.
-The
likely effect of change in his/her circumstances
-His/
her age, sex, background and any relevant characteristics.
-Any
harm which he/she has suffered or is at risk of suffering.
-The
capacity of the parent/others to meet needs.
Where
a Court is considering whether or not to make one or more orders with respect
to a child, it shall not make the order or any of the orders unless it
considers that doing so would be better for the child than making no order at
all. This is called the ‘No Order’ principle. In any proceedings in which any
question with respect to a child arises, the Court shall have regard to the
general principle that any delay in determining the question is likely to
prejudice the welfare of the child.
Why go to Court?
If
parties cannot reach an arrangement in an amicable manner, either directly or
through mediation/ collaboration or by negotiating through their respective
solicitors, then the family court may be required to make a decision.
What is the Procedure in
applying to the Court?
The
Application consists of:
C1 The
Application Form
C1aa
Supplemental Form setting out any allegations of violence/ harm
C2 The
Application for leave
C3 The
Notice of Hearing
C3a
The Notice for Hearing to Non Parties to the proceedings
C4
Acknowledgement of Service
C5
Form to be used when an address is not to be disclosed
C6
Statement of Service
What Information Do The Forms
Require?
Details
of the children e.g. name; date of birth; special needs; with whom they reside;
identity of the parents; what Orders are sought, namely what do you want from
the proceedings e.g.Contact Order, Residence Order, Parental Responsibility
Order, Specific Issue Order Prohibited Steps Order
What directions do you want
the court to make?
Before
applying to the court, the parties will be expected to have made attempts to
resolve the matter by agreement and any such relevant correspondence should be
attached to the court application.
What happens once the application form is
completed?
You
must sign and date your statement outlining the Orders sought and your reasons
for applying.
Your
legal representative will then send the court documents along with a Summons
for the Court Office to issue on the other party informing them of the
proceedings and asking them to attend.
A fee is
payable to the court to have this done.
The
court fixes a date for a preliminary hearing or what is known as a Directions
appointment. This is a hearing which may discuss issues such as:-
the
timetable for proceedings as delay in the proceedings is prejudicial to the
welfare of the child;
problems
regarding the service of documents on the other party;
opportunity
for mediation/preparation of reports by the Court Children’s Officer;
transferring
the case.
Sufficient
time must be allowed to serve the proceedings on the Respondent.
Service
There
are several methods of serving the proceedings on the other party:
Personal
delivery on the other party.
By
first class post to the other party’s address.
If the
other party has a solicitor the proceedings can be sent to them by post, fax or
delivered personally.
Answer
Within
14 days after the service of the application the form of Acknowledgement must
be filled in and returned to the court either by the other party or his
solicitor.
Adjournments
An
application may not be resolved on the first directions hearing, although every
attempt will be made to do so; sometimes a case will be adjourned for a welfare
report to be prepared by the Court Children’s Officer who will liaise
independently with the parties, in some cases offering mediation to the
parties, and who may meet with the child in order to ascertain what is the best
decision for the welfare of the child.
Statements of Evidence
Each
party may be directed to file and serve written statements of evidence upon
which they intend to rely on in court if the case is to proceed to hearing. If
they do not disclose something in their statement, it will be very difficult to
rely on it in court.
What Information is required
for the Statement of Evidence?
Proposed
living arrangements for the child’s School arrangements
Any
health problems of the child
Location
of the other parent
Parental
attitude to the proposed Order
The
child’s wishes and feelings where appropriate
Any
other relevant concerns
What is a Court Children’s
Officer/ Welfare Report?
The
Court has power to request a report on the child’s welfare from social services
if they have been involved with the family or from the Court Children’s Officer
who is a social worker who works in the court for this purpose. Social Services
must arrange for a suitably qualified person to prepare such a report. Such
reports are common in contested cases where an agreement cannot be reached. They
can take a number of weeks to prepare. The report may be directed to be
provided either orally to the court or in writing. A Court Children’s Officer
may arrange mediation with the parents to try to narrow the issues in dispute
This
mediation may be conducted either together or separately (which is known as
‘shuttle mediation’). Where a child is of sufficient maturity to express a
view, the Court Children’s Officer may meet with the child.
The Hearing
Your
legal representatives have a duty to negotiate to reach an amicable solution.
Any agreement reached must be appropriate and child friendly bearing in mind
the age and circumstances particular to each case and the welfare checklist.
At the
hearing, the Applicant’s evidence is normally put to the court first by their
legal representative. Then any party with parental responsibility has a chance
to put their evidence to the court. A hearing can be conducted either by the
parties giving direct evidence or by way of submissions by the legal
representatives.
The
Judge delivers his/her judgement as soon as possible after the hearing and the
court must give its reasons for its decision.
