Family legal terms explained: Children
Family proceedings can be stressful and as well as learning to navigate the legal process there is also a whole set of jargon to understand which can add to your anxiety. You’ll find below some of the most frequently used legal terms with descriptions to help you understand what they mean.
Choosing a barrister who can advise you and represent you in court if necessary is a very important decision. You need to have the utmost trust and confidence in your barrister as they try to make the process as straightforward and stress-free as possible for you.
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CAFCASS is the acronym for the Children and Family Court Advisory Support Service. The organisation represents children in family court cases where required, and produces reports to enable the court to take decisions in the best interests of the children. CAFCASS was formed in 2001 and is sponsored by the Ministry of Justice.
Child Arrangements Orders
A Child Arrangements Order is a type of Section 8 order of the Children Act 1989 (see below). It governs who a child lives with and who a child spends time with. Read more on Child Arrangement Orders.
Child maintenance is a sum to be paid, usually monthly, to cover the day to day living expenses of a child. If parties cannot agree they can apply to the statutory child maintenance service (CMS).
Consent Order A consent order is a mechanism which allows parties to make an agreement legally binding, and therefore enforceable. The Court will only make an order where required (see the no order principle below).
This sort of order will be signed and dated and attached to a C100 form. There is no legal requirement to attend mediation before submitting a consent order.
An FHDRA is the First Hearing and Dispute Resolution Appointment in proceedings involving children.
At the FHDRA the court will focus on what the issues between the parties are, and how to progress the case. The court will want to know what the parties are looking for, and why.
Before a FHDRA parties should receive a “schedule 2” letter from CAFCASS, following a telephone call from someone from CAFCASS. CAFCASS is also likely to speak with the parties at court.
Sometimes agreements can be reached at this stage and they can be recorded in a binding court order. This would mean that a case could be finished at this stage. Read more about what to expect at a FHDRA.
No Order Principle
When making an order concerning children the court must be satisfied that making an order is better for the child than not making an order at all.
Prohibited Steps Order
A Prohibited Steps Order (PSO) is a type of Section 8 order (see below) preventing a certain action. A PSO may be made against anyone, regardless of whether they have parental responsibility or are a party to proceedings. PSO’s should not be made in respect of a child who has reached the age of 16 unless there are exceptional circumstances. The order must concern an aspect of parental responsibility.
The order can be made with or without notice to the other parent, in the course of proceedings or on a free-standing application. Making a Prohibited Steps Order without notice is a serious and exceptional action and the Court will consider such an application rigorously. You must have grounds, such as exceptional urgency, to make an application without notice. An absent respondent should be given notice of the application as soon as possible and an order made by the court in these circumstances should be limited in time. Read more on Prohibited Steps Orders.
Schedule 1 Cases
Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property; etc.
Section 8 Orders
Section 8 orders include child arrangements orders, specific issue orders and prohibited steps orders. You can apply for one using Form C100. They are called this because the court’s power to make the order comes from Section 8 of the Children Act 1989.
Specific Issue Order
This is a type of Section 8 order sought to determine a specific question in connection with an aspect of parental responsibility. It can be made on its own or with a child arrangements order but the contents should not be duplicated. They should not be made where the child is in the care of the local authority or where they would deny the High Court the exercise of its inherent jurisdiction. Read more on Specific Issue Orders.
An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.
Checklist Section 1(3) of the Children Act 1989 sets out seven criteria for the court to consider when making an order concerning children:
1. the wishes and feelings of the child concerned
2. the child’s physical, emotional and educational needs
3. the likely effect on the child if circumstances changed as a result of the court’s decision
4. the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
5. any harm the child has suffered or may be at risk of suffering
6. the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
7. the powers available to the court
Natasha Isaac | Family and Children
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