Court Orders

Orders Under the Family Law Act

1.1 The Family Law Act 1996 introduces two types of Order to deal with domestic violence and child abuse situations. These Orders regulate who is allowed to occupy the family home and/or the non-molestation of individuals - adult / child.

The Occupation Order

1.2 This decides who is allowed to occupy the family home and can direct another party to leave the home. In making an Occupation Order the Courts will consider all the circumstances of the case and in particular:

The housing needs and resources of the parties and children
The financial resources of the parties
The likely affect of an Order (or lack of one) on the health, safety and well-being of the parties or any child.
The conduct of the parties

The Non-molestation Order

1.3 This prevents the respondent from molesting the applicant or a relevant child. It can prohibit particular actions and behaviour or molestation in general.

1.4 The following may apply for such orders:

Former spouses and co-habitants
Those who live in the same household in a non-financial relationship, for example flatmates
Certain relatives, including parents, children, grandparents, brothers, sisters, in-laws
Engaged couples

Ouster Order (Exclusion Order)

2.1 The Family Law Act 1996 provides important additional support to the Children Act 1989 in those applications for Emergency Protection Orders and Interim Care Orders A request can be made to the Court to consider excluding an alleged abuser.

2.2 The Court must be satisfied that:

There is reasonable cause to believe that if the person is excluded from the home in which a child lives the child will cease to suffer significant harm or likely harm
There is another person in the home able and willing to provide care reasonably expected from a parent and consents to the exclusion requirement.

2.3 If the Court declines to exclude an alleged abuser the Local Authority should explore the possibility of providing services to and/or accommodation for, the alleged abuser as an alternative to removing the child.

2.4 The non-abusing parent may apply to the County Court for a short-term Ouster Injunction or to the Magistrates' Court for an Exclusion Order.

2.5 In all cases the overall welfare of the child will be the paramount consideration, even at the sacrifice of some forensic evidence.

Care and Supervision Orders

References

The Children Act 1989 Section 31

3.1 A Care or Supervision Order will be sought only when there appears to be no other way of safeguarding and promoting the welfare of the child who is suffering, or likely to suffer, significant harm.

3.2 A Court will make a Care or Supervision Order if it feels the following grounds are satisfied:

That the child concerned is suffering or is likely to suffer significant harm
That the harm, or likelihood of harm, is attributable either to:
The care given, or likely to be given, to the child would not be that reasonably expected of a parent to give to the child

The child is beyond parental control

3.3 These are minimum grounds and, even when they are met, the Court will only make the Order (or a Section 8 Order) if it is satisfied that to make an order would be better for the child than making no order at all.

3.4 No Care Order or Supervision Order may be made in respect of a child who has reached the age of 17 (or 16 in the case of a child who is married).

3.5 Effects of a Care Order

The Local Authority acquires parental responsibility which is shared with the parent(s)
The Local Authority has the power to decide the extent to which parents may meet their parental responsibility for the child
The Care Order can last only until the child is 18 years
The Local Authority must allow reasonable contact between the child and parents. However, the Court may specify contact arrangements, if these cannot be agreed

3.6 Effects of a Supervision Order

The Supervisor will advise, assist and befriend the child subject of the Order
The Order will initially last for twelve months but can be varied, discharged or renewed to a maximum of three years by the Court
The Order imposes an obligation on the 'responsible person' (such as the parent, the person with parental responsibility or the person with whom the child is living) to take reasonable steps to ensure compliance of the child with the supervision order and to comply with the directions given.

Section 8 Orders

4.1 There are four types of Orders listed under Section 8 of the Children Act 1989:

A Residence Order settles the arrangements to be made as to the person with whom the child is to live
A Contact Order requires the person with whom the child lives to allow the child to visit or stay with the person named in the order or to have such other contact as specified in the order
A Prohibited Steps Order is an order that prevents a parent from taking specified steps that would normally be within the scope of their parental responsibility. If a parent wishes to take the steps that they are prevented from doing so, by the order, they must apply for leave of the Court
A Specific Issue Order gives directions for the determination of any question relating to a child which has arisen or which may arise in connection with an aspect of parental responsibility

4.2 Section 8 Orders should not be made in respect of a child who has reached sixteen years of age unless there are exceptional circumstances.

4.3 Section 8 regulates private law matters relating to children.

4.4 Local Authorities in public law proceedings cannot apply for Section 8 Orders.

Welfare Checklist

5.1 Before making an Order, the Court must consider the following:

The ascertainable wishes and feelings of the child
The child's physical, emotional and educational needs
The likely effect on the child of any changes in the child's circumstances
The child's age, gender and background and any other characteristics the Court considers relevant
Any harm the child has suffered or is at risk of suffering
How capable each of the child's parents is of meeting the child's needs and any other person in relation to whom the Court considers the question relevant
The range of powers available to the Court in the proceedings in question

Threshold Criteria

6.1 Threshold Criteria is the factual basis on which the Court will decide whether a child has suffered or is likely to suffer significant harm before an Order is made.

6.2 The time and date for determining whether a child is suffering or is likely to suffer significant harm is either:

The date of the hearing for the Care or Supervision Order

or

The date on which protective measures commenced, provided these measures have continued in place up to the application for the Order

6.3 The grounds to prove the threshold criteria are:

That the child is suffering or is likely to suffer significant harm, and
That the harm or likelihood of harm is attributable to the care given or likely to be given, if an order were not made, would not be that reasonably expected of a parent
The child is beyond parental control

Care Plans

7.1 The Care Plan is a separate document filed within proceedings. It sets out in detail future proposals having regard to safeguarding and promoting the welfare of a child.

7.2 The Care Plan has key elements which are set out in LAC(99)29 and include:

Child's identified need and how these will be met
Aim and time scale
Details of the proposed placement
Services to be provided to the child and/or family by the Local Authority or other agencies
Arrangement for contact
Support and duration details
Contingency plan
Termination of placement arrangements
Responsibility of implementation
Parents day-to-day role
Views of child/family and any dissention
Health and education arrangements
Review arrangements

The Court will determine its satisfaction of the plan.

7.3 Other considerations include twin-track planning where appropriate and the need to plan as early as possible.

Child Assessment Orders

The Children Act 1989 - Section 43

8.1 Only the Local Authority or an 'authorised person' (such as the NSPCC) may apply for a Child Assessment Order.

8.2 This Order would be appropriate if the likely harm to the child is deemed to be long-term and cumulative, rather than sudden and severe, that is, a chronic not a crisis situation. In perceived and imminent danger an Emergency Protection Order should be sought.

8.3 It is expected that an Assessment Order would be applied for only after investigation and as a result of the decision of a child protection conference

8.4 A Court will make an assessment order if it feels the following grounds are satisfied, in respect of the child only:

That the applicant has reasonable cause to suspect the child is suffering or is likely to suffer significant harm
That an assessment of the state of the child's health and development or of the way it has been treated, is required to enable the applicant to determine whether or not the child is suffering or is likely to suffer significant harm
That it is unlikely that such an assessment will be made or that any assessment made will be satisfactory, in the absence of a Child Assessment Order

8.5 It will be necessary to show that not only is there concern but that the child's parents have failed to co-operate with any voluntary arrangements.

8.6 In applying for an Order, it would be expected that the child had been seen recently by a person competent to judge whether or not the situation constituted an emergency.

8.7 While an experienced Social Worker may be able to make judgements about both the child's emotional state and obvious change in physical well-being, it would be preferable for a health professional, such as a GP or Health Visitor, to see the child to judge finer points, particularly in young children.

8.8 The conditions of these orders are:

The parents are obliged to produce the child and to comply with Court requirements regarding assessment, for example medical / psychological examinations
The parents will be expected to co-operate in so far as is necessary to provide a social/medical history of the child
The Court cannot order assessment of the parents under this order
The child may refuse to submit to the assessment

8.9 Guidance specifically points out that all professionals should take care to avoid coercing the child into agreement to co-operate with assessment, even where there is a belief that the refusal to co-operate is itself a product of coercion by a parent or friend.

8.10 The following duration conditions apply:

The Court can authorise up to seven days for the assessment
The seven days are counted from the date the Court directs the assessment to start. In these circumstances, the date for the start should be agreed by the professionals concerned prior to the Court application

8.11 The Order includes the scope for the following points:

The assessment is expected to be multi-disciplinary and to cover the child's medical, intellectual, emotional, social and behavioural needs
The assessment would normally take place while the child remains at home, except in exceptional circumstances such as where there is a need to observe feeding or sleeping patterns

8.12 There is a provision for the medical personnel chosen by the parents to make the assessment, if this is agreeable to all parties. However, since the emphasis is on multi-disciplinary assessment it is unlikely that assessment by one health professional alone will be considered sufficient.

8.13 Failure to produce the child for assessment would constitute grounds for an Emergency Protection Order.