Hello and good morning everybody very pleased to welcome you to today's session. My name is Safta Mahmoud. This is the session through data law Session nine where I'm taking you through this solid foundation for new entrants into family law and practice. So you know by now that this is a 12 session course where I'm spending approximately an hour for each session going through with you with a view to providing you with a comprehensive and introductory account of the law practice and procedure in various aspects of family law and practice. And we're looking at this course as of October 2022. So you know that there's a number of slides that I'm working through for each of these sessions with a view to then giving you uh the significant elements for each of those areas of law. So for the last eight sessions. Now what I've done is I've spent a fair bit of time and looking at aspects of marital breakdown. We've had a look at the law related to domestic abuse. We've also had a look at the law relating to finances, both for married persons, civil partners and also cohabit ease. And we've then also started looking at some elements of Children law. So what I'm going to be doing for the remainder of the sessions is I'm going to be continuing with looking at the aspects of Children law firstly today we're looking at some of the elements of child support law and schedule one of the Children act and then the rest of today's session will be looking at Children proceedings in so far as the welfare society's concerns. So I'll be introducing you to private and public Children's cases, we'll be looking at parental responsibility. Some of the ways in which we look at private Children or orders being sought insofar as that's concerned. And also special guardianship. For example, those types of orders prohibited steps, orders prohibited steps specific issue, those types of orders. And then we'll spend some time looking at the principles under the Children Act, particularly the welfare principles. Okay, so that's the aim. That's what I'll be doing over the course of this session. So, you remember in some of the earlier sessions, I was talking about the position surrounding assisting cohabit ease and former cohabit ease. And you remember I discussed with you in the session before last, the position surrounding the use of teletext as a trust of land and appointment of trustees Act of 1996. Then that would be particularly useful when you're looking at matters surrounding cohabit ease and former co habitants. Although it's used by other persons as well. Married persons can use it civil partners can and also relatives can. And it would be particularly useful then to use two latter where, for example, you've got a couple who may have been living together for a number of years that may have been cohabiting they then fall out and you may be using to Lotte with you too. May be seeking in order for sale if the property is jointly or maybe transferred the property or maybe a beneficial interest in the property is in one person's name. So that's where to Lotte can be particularly useful alongside that. Or instead of a lotta, you may also wish to consider Schedule one of the Children act. So he sees the Children activation nine, section 15 Schedule one. And this is not limited to just being used by cohabiting or former cohabiting parents, but principally you'll find in practice, it will be largely that that set of clients will rely upon this. And this is where therefore, as you can see a parent can claim against the child or the parent or another person has assumed parental assumed responsibility under the Children act in disregard and it's important to note that the operation of this is limited. Of course, the workings of the Child Support Act of 1991 as amended by the Child Maintenance and Enforcement Act. And as you know, child maintenance now is being run through the CMS, the Child maintenance Service. So that if for example, I was acting for, say, the mother and she sought for periodical payments for her child from the father and the figures that she's looking at in terms of what the father is to be assessed in terms of the rates comes within the CMS, then really we should be looking and utilizing that if needs be. So Schedule one could be used more One of the Children. That could be used more as a top up. And what I mean by that is the CMS can only be used when you're looking at the income of the nonresident parent parent against whom you are seeking. The relief from where their income, you're assessing them from. The maximum you can assess them is the 1st £3,000 per week grows. So if you've got somebody who's on say £10,000 a week grows, for example, the CSS is only able to assess for the 1st 3000, so the other 7000 a week you can use as a top up if appropriate, schedule one of the Children. So that's where that may well be helpful in that regard. So who may apply that under schedule one. So as I say, this is whereby you'll find that a parent of a child may apply to your guardian or anybody else who has the benefit of a child arrangements order, especially find a child living with them on behalf of that chance for those with the applicants. And the range of orders available, the court may make periodical payments, lump sum orders or transfer settlement of property orders. So in a way you can see that these orders are typically then going to be similar to what we have in terms of the financial orders available, like say this may well be were say parents and is applying against the other parent in that situation for relief in this garden in this regard, particularly like I say if they are not married and not civil partners and they are cohabiting. So it may well be in that kind of situation. And it turns out the criteria for these orders. The criteria for this is similar to what we have under section 25 of the match. One of course is at 1973 for financial orders. So similar in that regard, it's set out within section four of the act. And you can see here that these are the factors which are set out. So it set out under schedule one, section four. So here you can see one would look at the income earning capacity, property and other financial resources of the applicant and also the child and the other parents, both in the present and in the foreseeable future. Okay, so you do have to take into account of resources if any of the child as well in these circumstances. You also need to consider the financial needs, obligations, responsibilities that the parents have. We're likely to have in the foreseeable future. And then the financial needs of the child needs to be considered. Obviously that is a major thing which will be considered insofar as this is concerned. In addition to that, it's necessary to also look at income earning capacity, property and other financial resources of the child. So again, that's where you're looking at the resources of the child, any physical or mental disability of the child and the manner in which the child was to be educational trained. So it might be that, for example, the parents were arranging for the child to attend a private school for example. And they have now separated the parents and say the one parent is seeking periodical payments against the other to enable the child to continue to attend private school, then that's where schedule one may possibly be used. And as I mentioned, the Child support act as amended, then does run alongside schedule on to the Children. It's important to have the two alongside in that regard. That then brings me onto the position surrounding child support law. So this is where if you've got a situation where the parents would care is seeking child maintenance against the other parents who may well be the biological parent or the adoptive parents of the child and that's where they may wish to involve the CMS with a view to then seeking child maintenance from them on behalf of the child in all circumstances and the child support agency as it used to be. Now, the CMS will then contact a nonresident parent with a beautiful and producing calculation in that regard. And the way this works is there were changes that came in March 2003 in so far as the ways in which we calculate. So essentially you've got these, this is technically the basic rate plus then there's the basic rate, reduced rate, flat rate and new rates. So these are the various calculations and ways in which we calculate what the amount of the child maintenance will be. So putting it simply, somebody who's on basic rate would be where they are have got an income of over £200 per week. Reduced rate is if it's below if it's between 102 £100 per week, flat rate is if they are have an income of under £100 a week or if they're uncertain prescribed benefits and new rate is if they have got no income, that may be for example, in custody, for example, there may be somebody who's working, who's studying full time, who has not got any income coming in, for example, So it could be those situations. So, new rate, the person there would not be required to pay because obviously there's no income coming in, flat rate. Uh somebody who's on certain benefits or on an income of less than 1 100 per week, don't know, ordinarily be paying £7 out of their their income or benefits towards the child. And then the reduced rate is a figure which will be between for those people who are earning between 100 and 200 per week will be reduced based on the calculations of the basic rate and release the basic rate like say, which is going to be relevant for somebody who is earning more than £200 a week. And how is that actually calculated? Well if we then take somebody who is on the basic then, so let's say somebody's on say maybe £1,000 a week, for example, grows. Okay. So what you then need to do is this if somebody's on say £1000 a week grows for the 1st £800 of that, you need to see how many Children it is that they're going to be required to pay maintenance for. So if it's one child and 12% of that, £800 will be payable for two Children is 16% of that amount and for three and more 19%. Okay, so that's for the 1st £800 per week then for the remainder e from the gross income might be between 800 to £3000 per week. Because remember you can only assess through the CMS for somebody who has got a gross income of in terms of what they're earning. You see messi only only responsible for assessing somebody for the 1st £3000 per week growth that day. And so I'd like to say if that person is on £1000 per week and the 1st 800 as we just mentioned, you've got these figures here And for the remainder of the other £200 per week, an example have just given you will be paying this additional amount. Okay, so I'll be paying this addition on the map for the remainder, so 9% additional for one child, 12% additional for two Children, 15% additional three or more. Okay and growth is defined as gross income minus pension contributions in particular, so you can deduct pension in that regard. Okay, now there are other deductions as well which may be applicable in appropriate cases and two of the main ones of these. There is this percentage reduction for other Children of the nonresident parent who may be living with them. So if say you've got say the father of the Children who are the subject of the child support calculation who is now living with another lady and she's got Children, then it may be possible in those situations to have a reduction in terms of the amount he pays, depending on how many other Children are living with him. So here you can see there's those with deductions as well there So 11% for one child, 14% for two Children, 16% 3 of them. And also there could be other deductions, such as in the case of shared care for example. Okay, so the way this works is shared, curious defined as when the child stays overnight with the paying parent. So if the Children do stay with their father in the example of just given, depending on how many nights they stay with him over the course of the year, then they'll potentially be a deduction of the amount he pays because the thinking behind it obviously is if they are staying with their father throughout the night and of course uh and and staying with their father and of course he obviously needs to be financially providing for them and therefore arguably they would require less when they are living with the other parent and hence he'll be paying less in that regard. Okay, so that's the kind of basic way of looking at the way in which we calculate the child maintenance. Okay, right, let's now start looking at the position surrounding the welfare side of Children proceeding. So this is where we're gonna be looking at both private and public Children or cases and the law on this and private lawyers where you've then got disputes between individuals, say between the mother and the father over various aspects surrounding at child's welfare and public laws where you've got public bodies then who will then become involved when you've got local authorities involved particularly relating to for example care proceedings, those types of applications. So we'll have a look at that. And also in today's session, I'm gonna spend some time going through with you the positions for having the preliminary principles in particular the welfare principles on the section one of the Children to see how that all ties together. So when you are dealing with Children proceedings, it's very important then to be familiar with were distant ties in in so far as the family procedures is concerned. So as I mentioned in the first session, you remember that the family procedures which are constantly being updated will then provide some very very useful information as to the procedural elements of running these cases. And this is where Part 12 is particularly useful to look at, which covers application related to Children. It will cover their for private and public Children law matters. It doesn't cover Part 12 doesn't cover parental order proceedings, which I'll talk about later proceedings for applications in relation to adoption and related proceedings. Parental order proceedings are covered by part 13 and part 14, as we'll see later covers adoption placement and other related proceedings, But part 12 covers not just private and public law cases. It also covers within that context, applications that may be sought through what's called inherent jurisdiction of the high court and those have been particularly necessary over the last several years, particularly with what's called a dollar application of deprivation of liberty application which will take you through later. So like I say, part 12 is a large section. It covers the processes then for running private Children or applications as well as public law such as care and supervision. Water applications. And when you are dealing with the welfare side of Children and the main act will often then be the Children Act of 1918 nineties. Also other piece of legislation which are equally necessary and relevant. For example, there were some amendments brought about by the Children and Families Act of 2014. There's the adoption of Children Act of 2002, which is obviously very relevant when it comes to plans for adoption in relation to assisted Uh conception is the human fertilization and embryology act of 2008 for example. So there's various other forms of legislation as well which are relevant in relation to Children matters. So, a lot of the law relating to Children like say, is contained within this Children Act of 89. So because private and public law cases in relation to the care of bringing up Children provision of services in that regard and therefore when you are advising clients, it's very important to have an understanding of what we mean by parental responsibility. So, what exactly is this defined as well? It's defined under section three Subsection one of the Children, you've got the definition here or the rights duties, powers, responsibilities and authority which by law, parent has in relation to their child and their property. Okay, so it's about rights that the person may have towards their child and duties to have and the powers and I think it's quite important to emphasize the fact of duties because When this provision came in, Wendy came in, most of it came in October 1991, it very much emphasized the duties that a person then has towards the child as opposed to just the rights and powers that may have towards that child's welfare needs and therefore, we'll have a look at some of these duties as we progress. So we need to be clear about who has parental responsibility. Uh and what you'll find is the mother of the child and the mother, the lady biological mother in that regard, uh she will we always have parental responsibility for the child. Okay. There are situations where she could lose it. For example, the child is adopted by somebody else, then the birth mother will lose pr and also, if there's a parental order made under section 54 or section 54 A of the human fertilization and embryology Act of 2008, the birth mother would then lose pr in that case. But in every other situation, she'll retain her pr or she may want to share it with other people or other agencies as the case may be. As for the father, it's not as straightforward for him. For him. There's different ways in which he will acquire parental responsibility for the child. And we need to be clear about what those ways are, particularly if the father is unmarried. So let's have a look at that and therefore, the first method through which the father of the child will acquire permanent responsibility for the child is through marriage with the child's mother and or civil partnership. So if they are married to each other or civil partners and then they later decided to have a child together, he will then have parental responsibility for the child. If they are married or in a civil partnership at the point at which the child is born or even afterwards. If they subsequently marry each other went into a civil partnership, the child is legitimate and the father will acquire pr as well at that stage and in fact he retains his pr even if they divorce or dissolve their civil partnership. Okay. There's another way in which the father can acquire P. I. It's not used very often nowadays, but it's through a pr agreement. So there's a parental responsibility agreement that he and mother can sign up to at the local court, it would then be sent to the Central family court in London and once they have registered it, he acquires pr that's the second way, then there's also parental responsibility order. So if he and mother fell out and he sought parental responsibility for a child. Another way then is to seek parental responsibility through an ordered. This is through section four of the Children active age nine whereby if he can demonstrate that he's got sufficient commitment attachment relationship to a child, then that would give him parental Responsibility for the child. You're looking at a number of factors, his commitment, his attachment, his relationship, his reasons for applying you wind up all of those factors to see whether he should be granted this order under section four. And the next method is through chart arrangements order, specifying living with what used to be called a residence order. If he acquires a chart arrangements live with order, then that also gives him PR. As well. Under section 12 Subsection One of the Children act. And the other method is through registration on the child's birth certificate. So if he was to become registered jointly as the child's father on the birth certificate for registrations, that's on one December 2003. Then that also gives him parental responsibility also. So you can see there's different ways in which the father can acquire pr for his Children. Okay. Other people can also acquire pr. So you can see here you've got the situation with, for example, legal guardians. So if somebody was to say the mother and your father were to appoint a legal guardian in the will, then there are exceptions. But generally speaking when the other parent with P. And that parent has passed away and that's where the point of the legal guardian can come into effect and that will then give them parental responsibility for the child. So there's that provision as well adopt your parents. If you were to adopt a child then gives you parental responsibility, your source. So that's the other way and then you pick up parental responsibility and everybody else loses that. Then if a non parent acquires a child arrangements order. Live with. So if you've got a grandmother for example who acquires a child arrangements order specifying living with then it gives her P. R. As well for the duration of the order and as I mentioned public bodies, local authorities when they get involved and that's where into the realms of public child care then they may well acquire for example an emergency protection order which we'll look at later. Goodbye. Section 44 45 other Children, they will then acquire Pr which they will then share with other people with Pr. And also the local authority may seek a care order pursuant to section 31 again that will give them parental responsibility which they will then share With other people or agencies with pr. Okay so you've got different situations where people acquire pr and later I'll take you through special guardianship orders under section 14 of the Children activate nine. And that's where the Special Guardian will also acquire parental responsibility. In many respects it's elevated. Which which I'll explain later. Alright so these are some of the various and many ways in which parental responsibility can be acquired. Now that that makes me onto the position surrounding parentage. And this is particularly relevant then when we look at the position with Pathe 13 of the family procedure rules and the concepts surrounding amongst others for parental orders. And this is where it's important to be familiar with the definition of a parent. So in terms of parental order and surrogacy, the way that would be relevant is where let's say you have a husband and wife, they have tried to have child themselves naturally. And sadly it's it's problematic for them and it's not happening uh may well be complications that may have gone down the route of other forms of assisted conception fertility treatment. But sadly again it's not working for them. And that is fairly some other options of course with a view to having a child. And one option may well be that daily cited called of surrogacy. So they identify a lady who's prepared to be the surrogate mother for them and they would then enter into an arrangement with her to have the baby. Now it's important that commercial surrogacy is not permitted and in fact it's unlawful. So any form of commercial arrangement is something that the lawyer cannot assist and advise on and be party to. And the clients must not therefore be advised about that. Uh And uh what you're finding is if they do reach an agreement between them and a lady that he's prepared to be the surrogate mother for them, then when that baby is born, if the mother does hand the baby over and if the mother is married or in a civil partnership and her husband and wife or silver partner would also need to consent to the arrangement. And when the child is handed over, this is where the commissioning families can then apply for a parental order under section 54 of the H. F. E. A. That's the human fertilization and embryology Act of 2008. That will then give the commissioning family parental responsibility exclusively. So they will then pick up Pr and that's where the birth mother and her husband and wife, a civil partner will lose that. Pr Okay, there's other aspects of parentage as well. So for example, some of you may have looked into the H. F. E. A. When you've got to say to women for example who seek to become and have parentage through a UK registered licensed fertility clinic. So they go to a clinic and babies born through anonymous sperm donor. One of them conceived as long as they both understand the process and they consent and have been canceled. And when that baby is born, the lady who gives birth obviously the birth mother has Pr and the birth mother and the legal mother but her partner, even though she has no biological link with the child is also class as a child. Second female legal parent. Okay, so it's those types of developments which obviously need to be familiar with. And we've also got the concept declarations as their parentage. So sometimes in this area you may well find that there are question marks as to parentage as to whether somebody is or is not the child's father or mother as the case may be. So she's in court and say the mother is challenging whether the putative father is in fact the father then ordinarily what we'd be doing in that situation is would be going down the route of getting DNA testing arranged. And that would then assist insofar as determining whether he's there are sufficient markers to indicate that he's the biological father of the child and if it comes back and confirms that there are insufficient markers to suggest that he's the biological father. Then what we can then do is we can seek a declaration under section 55 A of the Family law Act of 1986 for a declaration of non permitted to confirm in law that he is not the biological father. Similarly, if the markers came back and confirmed that he was sufficient heaven and studies the father, then we can see that declaration to confirm that he's the father. So he can be used in that manner. So very, very important to think about these applications for declarations insofar as that's concerned. Okay, so you can see these are some very important matters that we've looked at in terms of Children proceedings, both in terms of the financial side. I schedule on child maintenance and also when we're looking at the welfare aspects insofar as that the position with parental responsibility. Let's now look the positions for adding private Children or orders in particular. What I wanted to do is to take you through somebody private Children orders where there will be disputes between individuals and A lot of this then is contained within Section eight of the Children Act of 89. Okay? So section eight which will contain these private Children or orders. So there's three types three types of orders that people may well pursue. And the first one is the child arrangements order which specifies the child living with and spending time with otherwise having contact, which now this has replaced what we used to have previously known as a residence order and a contact order. And I'll come back to these shortly. The other is a specific issue order and the 30s of prohibited steps orders. I'll take you through each of these in turn. So firstly then the chart arrangements order. Some years ago we used to have the position with custody orders and access orders. Those were then replaced with residents orders and contact orders. The President's order which settled the living arrangements for a child. So specify with whom the child lives with and contact orders by their very name. Would then permit then the child having contact with the person concerned. But both of these orders, residents in contact merged some years ago as a result of the Children Families Act of 2014. They merged back in April 2014 to become known as one order and that is the child arrangements order and that regulates the arrangements for the child in relation to firstly with whom the child is to live, spend time with the otherwise have contact with and secondly, when a child is to live spend time or otherwise have contact with. So therefore you have potentially one order known as a child arrangements order. But within it we can specify that the child, for example, lives with the mother and the mother should ensure that the child spends time with the father as follows. So you can have one order that fulfills both those functions. So that's the way this works. And the idea behind this is it then generates this idea that it's one order and therefore one's not, one parent is not more important than the other. They both got the same order, but within it, it specifies how the arrangements for the child are actually being regulated. That's the thinking behind it. Okay. And the other type of order that I mentioned is the special guard ship or now this is a bit of a hybrid order. So it can be made within private Children or cases and it can also be made within public law cases also in that regard. So these are contained within sections 14 A through to f of the Children active 89. Okay. And insofar as these are then concerned, these came into effect on the 13th of december 2005. And these are similar to but also different to chart arrangements order specifying live with. So there are some similarities but there are some differences as well insofar as these are concerned. So how are these similar and different. Well, I think the mind is firstly parents cannot become a special guardian for their own child. Okay, where's obviously a parent can apply for child arrangements order? That's one big difference. The other similarities with special non supporters. Of course the person will acquire parental responsibility just like you would do with a child arrangements order specifying living with similar to chart arrangements or living with the special garbage can exercise various elements of parental responsibility and in some ways unilaterally in some cases you need to consent or the other parents with PR. But the big difference between this order and a child arrangements order is with the S. G. With the Special Guard ship order. The Special Garden can exercise many aspects of parental responsibility to exclusion or any other person with PR than another special guardian. Okay. So it gives you this parental responsibility which is elevated, elevated and form in the sense that you can do more with this in terms of the exercise of pr than what you could do. Excuse me? The exercise of parental responsibility under a chart arrangements or to live with it doesn't extinguish the parental responsibility of the parent, they retain it, but it's limited in scope. So to give you an example, if say you've got a situation where the special guardian wishes to carry out a steps such as for example, changing a child's school, For example, if they feel that that's in a chance welfare best interest, then if they had a child arrangements order specifying living with, then that specifies the child lives with them. It doesn't allow them to change the school so they still need to consult and seek permission of the other parent and if that's not forthcoming, they should then be applied for a specific issue order today with a court to determine that issue was if they had a special guard ship order, they can exercise pr exclusion of all other people other than another special guardian. So if they thought that changed the child's school, it was in the child's welfare best interests, then they still need to inform the parent. It's very important to bear in mind that the parent members retains their pr or B. It's limited in scope. They still need to inform the parents, but they can exercise that discretion. That decision to the exclusion of the parents. So they can decide to change a child's school if they feel that it's in the child's interests, as long as obviously they are informing the parent and then the honesty is very much upon the parent to decide whether or not the challenge that the parent may apply for a prohibited steps order to prevent the special garden from going ahead and doing that or maybe a specific issue in relation to that. Okay, so that's where you've got simple differences there there's also other differences between disorder and child arrangements. Live with orders. So for example to become a special Guardian, you need to give notice three months notice to the local authority. Normally the area where yourself and the child are residing. So as to enable you to be vetted by the local authority. So notice needs to be given and that notice that would be acted upon by the local authority to enable a thorough assessment be undertaken of the person. So as to see if they are to become a special guardian and not for the for the child in that regard. So that's that's very important. And also once appointed. Then if the special report is made in a special guardian can like to exercise piat exclusion of all other people with PR. Except what the law requires the consent of their P. R. So there are still some limitations in that regard. So for example if the Special Garden which is to change a child's surname then they still need the consent of the other parties with P. And if it's not forthcoming they should be applied to call for an order if they wish to cause or allow the child to be taken at the jurisdiction they can do so but for up to three months if it's going to be for a period longer than that they need consent from the other person's with Pr and if it's not forthcoming, they need an order from the court. Now that's where again this is different to chart arrangements. Live with orders because there you can only as a child arrangements order specifying living with holder Arrange for the child to leave the jurisdiction pursuant to section 13 subsection to the Children Act, but only for a period of less than a month. If it's more than that, you need permissions if not in order from the court. So you can see for S. G. It's longer, it's three months. Whereas we live with order, it's the month. So that's the other difference. And the other key aspect with special guard ship is when the local authorities do assess, they'll be assessing for amongst other things, not just whether or not this person may be suitable to be a special guardian for the child, but also they'll be assessing them for special hardship support which could include financial support, which will involve them being assessed financially as well. And it is means tested. So therefore that there will be that element as well. Okay, so very very useful orders which can be made in private and public. Little cases as a case may be. So let's spend a bit more time than looking at the position with the child arrangements order specifying living with and spending time with and like I said, these orders then. So it's one order which can then cover obviously both elements there as I've mentioned and therefore very very important orders insofar as that is concerned. So with the contact, spend time with otherwise having contact with, it could be direct and it could be indirect. So director of course is where you are having that face time, that direct face to face contact with the child. So it's obviously the child is in your presence. So that's what we mean by direct and indirect is where it's not face to face in that regard. It's other forms of spending time. So it could be sending letters, birthday, other forms of cards, gifts, telephone calls, sending gifts, contact with Skype, Facetime, email, text messaging those type of things obviously, which is going to be indirect In that regard. The contact could be defined and often what we'll find in these in these cases, particularly these conflict between the parents is we may have to define the contact person in section 11 subsection seven of the Children. And the way that's done is sometimes you may have an order which specifically regulates how the contact is to happen. So for example, it could take the form of specifying that the respondent mother for example, is to make sure that the child is made available to spend time with her father. So that each and every saturday, for example, the mother will make the child available to be collected from her house. And so and so address the father will come out uh 99 A. M. In the morning. And he will collect the child. And then he will have activity based contact with a child. And he will turn out to set time. So, so it's very specific, it's very defined so as to really avoid any conflict between the parents. And so far as that's concerned, it could also be used to regulate where the child is taken for contact. Who else is in the contact section. Is it just father or other people there as well? So you can see the thinking behind this. Now, it's important that when we do look at child arrangements order specifying living with that, We are clear about the limitations with this. So this is where section 13, paragraph one of the Children comes into play. And this provides that where there is a child arrangements order specified living with no person is permitted them to change discerning of the child nor to remove the child from the UK without the written consent of the person who has pr for the child or permission of the court. So that's if there's a child arrangements live with order in place. Having said that as I just mentioned, you have got this one exception under 13 2 of the act, which says that this prohibition of removal from the U. K. Is qualified in that the person who's favorites chart arrangements order is specified living with can do so for a period of less than a month. So if you got the mother for example who has the benefit of a child arrangements live with order and she wants to take the child to say spain for a few weeks for say the the half term holiday and maybe or sorry to say the christmas holidays for example for a couple of weeks let's say then if she's got the benefit of a child arrangements specifying living with and she can do so because obviously it's for a period of less than a month. But if it's more than that she needs the consent of the parent with P. I. If it's not forthcoming, this is where she may well apply for a specific issue order on that and the court will only grant it if it's in the child's welfare best interests. So that then brings me on to the other two types of section eight orders. So the next one then is the PS oh the prohibited steps order. So this is then used to prevent somebody from taking a step which normally could and may be taken. So to prevent for example removal from the jurisdiction or remove it from the other parent or say remove it from the school sometimes. So if there's a risk that the other parent may carry out a step in that regard which may not be in the child's welfare best interests and that's where you may want to pursue that one of these peer. So orders. These prohibited steps orders to prevent them from taking that step. So that's the thinking behind this and then the other type of order is a specific issue order which is then where you're seeking directions from the court in relation to a specific question, that's the vision in relation to an aspect of parental responsibility. So sometimes you'll find that this may well be used in certain aspects relating to the chance welfare. So for example, the parents cannot agree on, for example with school the child is to go to. So that's where you can put that to the court. If need be for a court to determine or what religion or aspect of religious affiliation to charge you follow. So should a child for example partake in a particular religious activity. Should a child be circumcised? For example, if it's been argued that that is a requirement under that religion or culture, for example. And if their parents can't agree, then that's where you may put that to the court. For example, should the child's surname or first name even be changed. So if for example, the mother or the father to change his surname because they are worried that if the child retains that surname, then given the association that may help with the other parent, it may prejudice their welfare. So that's where you may look at that or whether they should receive a particular for medical treatment as we'll see shortly specific issue orders have been used. It relates to applications relating to vaccinations, for example, so it could relate to those types of matters. So when it comes to a specific issue order in relationship, for example, change of surname, then there's been case law which has very usefully then helped us to be clear about what the position is here. So you've got a number of cases on this over the years and one of the earlier cases was this case of Dawson and we're mouth in 1999. Uh and that was then we confirmed later by the case of VW in 2013. One of the key aspects of these cases is that the court in deciding whether or not to permit the change of your child's surname will need to be satisfied by allowing the change of surname. Would it lead to an improvement in that child's welfare? Okay, so as we'll see later, this then ties in with section one of the Children act in terms of making sure that this step that's taken must be in accordance with section 11 where the child's welfare is paramount? Okay? So if we do permit the child's surname to be changed, will it lead to an improvement in that child's welfare? So if for example, you've got a situation where the mother is claiming that you've got a situation whereby say the father of the child has been convicted of very serious offenses against the person and he's serving a lengthy prison centers. The mother may be worried that if the child retains that surname, people in the community will be able to put two and two together and realized that actually this is the child of that person who is serving a lengthy sentence for offenses against the person. And that may potentially place the mother. But more importantly the child at risk in that regard. And that's where you may find that there could be an application for change of sinning because say the father has got parental responsibility. This is an aspect of the exercise of pr mother cannot exercise unilaterally. The consent by him may not be forthcoming and this is where she made and apply for a specific issue order for the court then to be invited to provide her with with that permission with. So that's the thinking behind that. Now obviously this has been a major issue in terms of specific issue when it comes to matters related to vaccinations. And there's been a number of cases on this over the years and to more recent cases have been this first case of M and H private law vaccination back in 2020 this was handed down by Mr Justice Mcdonald on the 15th of december. So just a few weeks after the first uh covid 19 vaccination had become available and this case, even though it was not about Covid, there were any aspects of it which were referred to, but the actual application here was like saying, not in relation to seeking permission to administer any covid vaccination when it may became may become available for Children. The application here was by father where he sought for his two Children to have the mmr vaccination, sort of measles, mumps and rubella vaccination. And that the mother of polls, she was arguing amongst other things that there was a link in her view between the Children having the mmr vaccination possibly being on the autism spectrum. So therefore she was very fearful of this vaccination being given on the basis of that risk there. Uh, the application was sought and the court had said in many previous judgments that that link was not there. And the court on the facts did feel that it was in these Children's welfare best interest to have the mmr vaccination and therefore, the court accordingly authorized that. But the parents before, whilst they were before the court, they also raised the issue of the COVID-19 pandemic. And they said that because just very recently a vaccine had now become available only for use of adults at that stage against the COVID-19 infection. Then the parents asked the judge that if in the future travel became available again for Children and there may be a requirement for them for them to have the vaccination then what would the judges if you be insofar as granting a specific issue order in relation to a vaccine against the coronavirus for Children? And the judge did say that we were obviously at the very early stages with the vaccination program remained unclear as to whether Children who received this in these circumstances would be ones which would be approved by the medical commissioners and whether there will be official guidance given by the government on this. But what the judge was prepared to say however, is that having regard to principles of vaccinations? The judge did say that would be very difficult to foresee a situation In which if and when a vaccination against COVID-19 approved for use in Children was available. It would be very hard to foresee a situation where that would not be endorsed by the court as being in the child's best interests. In the absence of peer reviewed research indicating significant concern for the safety of that child and particular concerns for that particular subject child. So, unless you can demonstrate that there was a significant risk of harm to that particular child in the circumstances, if there was a vaccine approved for Children in those circumstances, then chances are the court may well endorse it. Now, this was an old bitter comment. So it was not part of the judgment as such. It was more of a persuasive comment but obviously one that is very relevant and therefore, which has subsequently been relied upon and in fact it has been relied upon amongst other matters more recently. In fact, just a few months ago in this case of permission to arrange covid 19 vaccination is 2022 decision by Iran, a judge rao que si. And now of course K. C. And this was a family court decision whereby here it involved two Children aged eight and 10 and father had lodged this specific issue application for each two Children to have the covid 19 vaccination in May this year. Now many of you will be aware that in September 2021 Uh there was the recommendation by the Chief Medical Commissioners for Children between 12 to 15 to have the COVID-19 vaccination and also in October 2021 to have the winter flu vaccination for Children of those years. And in february this year february 2022 there was the offer of the covid 19 vaccination to all younger Children aged 5 to 11. But there hasn't been a recommendation yet. So it wasn't that it's a recommended and therefore it's not in the same category as for Children between 12 to 15. But the offer is there. And when father lodged his application, that recommendation therefore wasn't there and and wouldn't be there. But the off road of vaccination was there. So he sought for a for the vaccination for his Children. A mother opposed her view was that there had not been sufficient clinical trials yet to really satisfied the court that this was necessary and therefore she opposed on that basis. But the judge took into account Uh the the law as it is sort of judge took into account. For example, the Orbiter comment in the case of them in age. The case by Mr. Justice McDonald. The court also took into account some of the care cases that we've had on this. There was a case last year. We see in November 2021 by Mr Justice Pier where the judge did say that if it's in the child's welfare best interests, a local authority who have the child subject to an interim care order, a care order can authorize the covid 19 vaccination for Children between 12 to 15 if it's in the chance and that particular child's welfare best interest. So putting all that together, the judge here did say based on the current science and the current applicable law, the court can authorize and will authorize under particular facts of this case, that the father would have permission to arrange for the vaccination for the child. Uh in this regard, even though obviously the Children were eight and 10 based on the offer by the government for Children from time to time. So therefore it was authorized. So you can see we've spent some time then so far looking at the position surrounding uh the private orders that are available. Three private law orders and hopefully that's been useful for the last part of today and what I want to do is to spend some time running through with you. The key criteria when you are dealing with Children act applications in terms of these private law orders under Section eight orders. So we spend some time looking at the criteria so far as these are concerned. So if one is applying for, say any of these, section eight orders, whether it's a child arrangements order, whether it's a specific issue, whether it's a prohibited steps order, then this is where we need to be clear about these principles under the Children Act of 89. So first and foremost, Section one subsection one of the Children Act. As I mentioned, the child's welfare must be the court's paramount consideration when it's determining any question relating to the child's welfare. So it's not so much what the mother or the father want once it's what's best for the child, which then governs whether or not the court would then allow that application to be granted or not. And we've also got what's called a no delay principle. So Section one subsection two. So the court tries very hard to make sure that delay is minimized in these proceedings. Now, this is where there has been a huge increase in Children cases, both private and public over the years. Obviously covid uh and the pandemic has exasperated the issues surrounding court delays and problems. We've been able to get listings and obviously resources still continues to be an issue. So therefore, even though we all old court users, we all try incredibly hard to try and minimize delay, sadly, there will be delays and it's a question of really working through that as best as we can. And that's where obviously this is enshrined within Section one subsection two of the act as well. And then there's no order principle. So the court needs to ask themselves that is better for a child than not to make the order. So if the couple have agreed, for example, it doesn't mean that you don't make the order. You still need to ask yourself, is there married in making this order will give that certainty that consistency, that approach that perhaps is needed on the facts. So therefore that's the that's the thinking behind that. And sometimes I found that even though we have agreed, we have literally agreed at the face of the court door and sometimes have suggested that for the for the sake of consistency and certainty, particularly where the arrangement is still quite fractious between the parties. It's sometimes helpful to have an order and therefore that's where we would take into account the principle under section one subsection five in that regard. Now tied in with this tent, we've also got the welfare checklist on the Section one subsection three of the Children Act. And this is a very, very important checklist which contains a number of factors which would need to be taken into account by the court in deciding what order they're going to make. So first and foremost then the court will take into account the ascertainable wishes and feelings of the child considered in light of their age and their understanding Now this is where we need to be familiar with the case of Gillick Gillick against Westwood Norfolk and Area Health Authority. This very important decision handed down back in 1986. The case involved a child who was under 16 who sought to have contraception provided to her. So she went to the GP and saw contraception and at the time obviously, as you can imagine, uh the various forms of contraception that were available were very controversial. Obviously a very sensitive issue at the time which around that time and even now people were raising and a G. P. Thought this child is not quite 16 wants me to prescribe contraception, which is the former medical intervention. Can I do this without the consent of their parent? With pr and should I be informing their parents? And that was really what the question was about, no matter what went all the way to what was then the House of Lords in those days. And in fact, the court did decide That when you have got a child under 16 who is sufficiently mature and has a certain degree of understanding and intelligence where they can understand the implications of what they seek and the processes involved, it is permissible for them to consent to in this case, for example, that medical intervention, even against parental consent and even against parental knowledge. So therefore, this concept of Gillick was created, which, as you can imagine, has been used and continues to be used day in day out. Since that decision in so many different situations. I mean, as you can imagine, it's been used in so many cases, not just in medical treatment matters, but in in other matters relating to Children. So, for example, if, say you've got say 15 year old who is pregnant and who seeks an abortion if they are sufficiently mature and they have that certain degree of understanding to understand the implications of what an abortion is, then it is possible for them to go through that process even without parental consent or parental knowledge, if the health provider feels that they are Gillick competent. So you can see the thinking behind this and therefore why it is a very important concept and therefore when you're dealing with Children cases, if say the father, for example, is seeking an order that the Children live with him, the court will take into account amongst other factors, the child's wishes feelings, but it has to be considered in light of their age and the understanding and hence why the Gillick principle is there in that regard. The court will also take into account to take a continuing example where father seeks for the child to live with him. The court will also take into account a chance, physical emotional educational. So how will always need to be met by father and daughter mother. You take into account the child's age, sex background, and any other relevant characteristics which the court may consider relevant. In addition to that, you've also got to take into account these other factors as well. So any harm that the child has suffered or is at risk of suffering. So if the father is saying that the child should live with him rather than with mother because she's in a new relationship, she's in an abusive relationship with her partner is subjecting her to abuse. And therefore, in turn, the Children are potentially at risk and not that he'll be raising that the judge will also take into account the capability of the parents meeting the child's needs. So he's the father able to meet the Children. Child's needs. Is the mother able to meet the child's needs. So, therefore, that will also need to be considered, and also you take into account the likely effect on the child of a change in circumstances that a child has been living with mother for quite a substantial period of time. Another father is seeking for a change of live with arrangements. Then clearly, that can have an impact. That can sometimes be a significant change for the child and that may be too much for the child and that there may actually find that they regress, they may even suffer trauma. They may they may actually object to that. So therefore you got to take that into account, and then the judge also has to consider what various orders are available. So, you know, the father has applied for a child arrangements, live with order in the court may decide that a different order is appropriate and necessary in the circumstances. So all of these factors will have to be weighed up in deciding what order if we need to make in these circumstances and tied in with that. We also have this concept of parental involvement. So this is a concept that was brought in by the Children and Families act in 2014 and basically dis emphasizes that if sales for father again, an example and he seeks child arrangement, spent time with, I will be using this concept to argue that there is actually a presumption that my client is, the father should be involved in a child's life to such an extent that it further the child's welfare, and then that shifts the honest and upon the other parent, the mother in this case, to show why that presumption should be rebutted. So then the onus is on mother. If she has got any evidence to suggest that by my client being involved, it would actually prejudice that child's welfare. Now, what this concept doesn't say is what the manner in which the parent is to be involved. So it doesn't say that the parent is to have three times a week contact, for example anything, it just talks about that the fact that the parents should be involved, but it doesn't specify how that involvement is. That obviously depends upon the particular facts of that case. Okay, right, so there we are. So I spent some time looking at somebody principles as well which are relevant in these applications and therefore that brings this session to announce. So you can see we've covered quite a lot today and looking at the position surrounding not only financial aspects, but also some of the welfare aspects surrounding Children. So we spent a fair bit then going through parental responsibility, going through some of the various orders available under the Children Act of Section eight Orders, Special guardianship orders and all sort of position with the welfare principles as well. So I hope this has been a useful course for you so far just to try and pull together how these principles are and what I've been doing in the next session is I've been developing the position surrounding the private Children orders. I go through some of the criteria with you and the procedure insofar as this is concerned. And thereafter, in the subsequent sessions we'll look at some of the aspects of public child care as well. So thank you very much and I'll speak to you soon. Thank you. Bye for now
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