Section 8 Orders
A Section 8 Order refers to the types of orders outlined in the important Children Act, 1989, and amended by the Children and Families Act, 2014.
Section 8 orders include:
- Child Arrangements Orders: Residence orders or Contact Orders
- Prohibited Steps Orders
- Specific Issues Orders
Child Arrangements Order
Over the last 5 years, residence orders and contact orders have been replaced with a more umbrella term of a Child Arrangements Order. In summary, this is an order which regulates arrangements relating to with whom the child is to live with, and spend time with. The narrative surrounding the orders has changed to stop the culture of there being a ‘winner’ or ‘loser’ in Children Act proceedings.
If a parent previously had a ‘residence order’ or ‘contact order’ then this order is still valid and parents do not need to reapply to Court for a new style Child Arrangements Order.
Child Arrangements Orders are covered under Section 8 of the Children Act 1989.
In order to have a right to apply for a Child Arrangements Order, you need to have parental responsibility for the child, a parent or step-parent of the child, or any person with whom the child has lived with for at least 3 years within the last 5 years. Anyone else for example grandparents, needs leave (permission) from the Court to apply for this order.
Having a ‘live with’ Order, means that parent or person is identified by the court as the primary carer. It is considered advantageous over a ‘spends time’ with Order, because it means that Parent or person can take the child out of the country on holiday for up to 28 days without having to seek the consent of any other party. Having a ‘live with’ order also grants you parental responsibility over a specific child if you did not already have this.
Prohibited Steps Order
A Prohibited Steps Order is an Order that prevents one parent or person with parental responsibility from making a unilateral decision that is not agreed by the other parent. An important restriction on a Prohibited Steps Order is that it can relate only to matters which are included within Parental Responsibility. An example of a Prohibited Steps Order that the Court can make is to refuse to allow a parent to remove the child from the jurisdiction, a decision to change schools, or following a threat to remove a child from their primary carer.
Specific Issue Order
A Specific Issue Order is an Order giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of Parental Responsibility for a child. It does not give a parent a general power, it just makes a decision on one issue over which there is a disagreement which cannot be resolved (for example educational provision, medical care, the religion the child should adopt and do forth).
Section 8 Children Act 1989
The party wishing to apply for any of the above Orders will do so under Section 8 of the Children Act 1989. Proceedings should only be issued where necessary.
Section 1 of the Children Act 1989 states that the child’s welfare shall be the Court’s paramount consideration. The Welfare Principal shall determine any contested proceedings under this Act.
As per Section 1 (3) of the Children Act 1989, the court will apply the welfare principle checklist which is set out below. This is not an exhaustive list and the Court can also take any other relevant factors into account.
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding).
- The child’s physical, emotional and educational needs.
- The likely effect on the child of any change in circumstances.
- The child’s age, sex, background and any characteristics of the child which the Court considers relevant.
- Any harm that the child has suffered or is at risk of suffering.
- How capable each of the child’s parents and any other person in relation to whom the Court considers the question relevant is of meeting the child’s needs.
- The range of powers available to the Court under this Act in the proceedings in question.
Where a Court is considering whether or not to make one of the Orders listed above, the Court will not make an Order/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 Presumption”. This means that there is a policy that the Court will not intervene and make an Order unless it can be shown that there is a positive need and benefit to the child in doing so.
Section 8 Orders - Costs
Depending on your financial circumstances, you will either need to fund the application on a private basis, or you may be eligible for Public Funding. Your Solicitor will advise you of this.
Where are the Section 8 Proceedings Issued?
A Section 8 Application should be made at the Family Proceedings Court local to where the child lives.
The party wishing to apply for one of the above Orders, will file the necessary form at the Court. The Court will then list the matter for a gatekeeping appointment to consider what level of Judge is required, and initial directions. The matter will be set down for a First Directions Appointment. The task of the Court at the first appointment is to investigate the issues, enquire into the possibility of settlement and give directions in any case that has to proceed. If the matter can be settled by agreement, the terms of the agreement will be recorded in a Court document and approved by the Court. A safeguarding officer at CAFCASS will provide a short safeguarding report to the Court and parties. If no such agreement can be reached at the First Hearing, the Court will make the necessary directions to progress the matter. Sometimes these directions include both parties filing a witness statement, a CAFCASS Officer being appointed and preparing a report, the listing of the matter for a next appointment (Dispute Resolution Appointment). If after the CAFCASS report has been filed, the parties are still unable to agree, then at the DRA, the Court will set a date for the Final Hearing. The Judge will make an Order at the Final Hearing.
Section 7 Cafcass Report
This is a court ordered report, and it will provide information on a child’s welfare and to consider the risks or concerns raised about the child, a parent, and any other relatives. Depending on the ages of the children, Cafcass may wish to talk to them to ascertain their feelings or wishes on a matter.
The court can order a section 7 report to consider a broad range of issues relating to the child, for instance:
- Where the child should live
- Whether the child should spend time with the parent they do not live with and if so, how often and for how long
- The wishes and feelings of the child
- The home conditions and suitability of the accommodation of a parent
- Whether or not the child’s physical/emotional or educational needs are being met
- Whether or not it appears that the child has suffered or is at risk of suffering harm
- A specific concern that has been raised in the case
- The parenting capacity of one of the parents
Normally when writing a section 7 report, the Cafcass officer will follow the structure of outlining the key facts, then the Cafcass officers’ response to certain questions that the court requires and then a recommendation as to the order that a judge should make when determining the dispute.