When couples separate, there is often a lot of tension about their child arrangements. What used to be easy conversations can suddenly become difficult. Some parents may be able to agree matters amicably. Sadly, there will be cases where the emotions are too high, relations strained and even discussing basic parenting turns into a complex matter. A Specific issue Order in UK Law, as outlined in Section 8 of the child act 1989, is a court order that provides directions to resolve specific and disputed questions in relation to a child upbringing.
You have managed to agree a contact schedule with the other parent. You might have signed a Parenting Agreement or even obtained legally binding Court Order. But what happens when you have a disagreement about where your child goes to school, or whether they should have a certain medical treatment, or you have decided that you wish to relocate elsewhere?
The first step is to try a form of Non-Court Dispute Resolution. Most people attend mediation to help narrow their issues. however when this does not prove successful, then their last option will be to consider making a Court application.
What applications can be made?
If a party has a particular dispute, they may consider applying for a Specific Issue Order.
This is an Order which aims to resolve a particular dispute which has arisen. For example:
- A disagreement on upbringing
- Decisions about a child’s education
- Disagreement about medical treatment or healthcare
- Decisions about the child’s religious upbringing
- Name changes
- Relocation, where one parents wants to move and the other parent objects
- Travel, where a parent may wish to take a child on holiday
Who can apply for a Specific Issue Order?
The child’s parents can apply for an Order, as well as step-parents, legal guardians and anyone named on a Child Arrangements Order. However, a party without Parental Responsibility for the child would require the Court’s permission to apply for a Specific Issue Order.
What is the Application Process for a Specific Issue Order?
Before applying to the Court, attending mediation (Mediation Information and Assessment Meeting – MIAM) is mandatory to ascertain whether mediation could resolve the issue without the need to resort to a Court application. There are certain mediation exemptions. These include cases of domestic violence or when the parties live too far apart. It’s crucial that you seek legal advice to determine if you qualify for an exemption, as it is based on your individual circumstances.
If Mediation is not successful or you are exempt from attending mediation, then you would need to file an application in the Family Court, known as a S8 (section 8) Order under the Children Act 1989. It is usual practice to file the application in the Court most local to the child in question. You may be required to provide evidence to support your application.
Once your application has been lodged, the Court will provide you with a Notice of Hearing where you will be required to attend a hearing. This is usually listed within 4-6 weeks’ time. In the case of emergencies, an earlier hearing can be requested. Please take legal advice as to whether this is appropriate based on your circumstances.
A CAFCASS (Children and Family Court Advisory and Support Service) officer will get in touch with both parties and obtain their view on the application, whilst also conducting initial safeguarding checks and provide a short report to the court. They will usually file their safeguarding letter before the hearing outlining any welfare concerns. The court will schedule a First Hearing Dispute Resolution Appointment (FHDRA) where the case will be heard by a Judge or Magistrate. A CAFCASS officer will usually be present. In some cases, parties are able to reach an agreement at the initial hearing. However, if this is not possible, the Court will often direct the parties to file statements and request further evidence. After that, a final hearing is listed. In this hearing, the Court will hear evidence from the parties involved, the CAFCASS officer, and other experts to make a legally binding decision
What factors do the Court consider?
When the Court makes a decision regarding a child’s upbringing, the paramount consideration is the welfare of the child. It is expressly recognised that delay is likely to prejudice that welfare.
In deciding whether to make any of these Orders, the Court must consider:
1. The ascertainable feelings and wishes of the child considered in light of the child’s age and understanding. Therefore, this is of particular importance in relation to older children. The older the child the more care the Court will take to consider the child’s wishes and feelings and attach greater weight to the same.
2. The child’s physical and emotional and educational needs.
3. The likely effect on the child of any change in his/her circumstances (effectively accepting the importance of maintaining the status quo).
4. The child’s age, sex and background and relevant characteristics of the child.
5. Any harm which the child has suffered or is at the risk of suffering.
6. The relative capabilities of the parents or any other relevant individual in meeting the child’s needs.
7. What other Order could be made.
The Court will hear evidence from both parties before making their decision.
How long will the Order last?
Once an Order has been made, it will automatically end when the child is 16 years of age, unless there are exceptional circumstances and the order may last until the child reaches 18 years of age.
You need to be mindful that an application should not be made when the child has already reached the age of 16, unless there are exceptional circumstances and the court cannot make an order in relation to a child in the care of a local authority.
For detailed advice, please get in touch with one of my private family lawyers who can guide and support you if you have a disagreement. Alternatively, you can contact [email protected] or call 0333 240 7373.