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Residence Orders: Section 8 Orders

Introduction

The separation of spouses is a bitter reality in our society, which no one can deny happens frequently these days. Some years ago, it seemed to just happen to people we did not know or to acquaintances, or neighbours perhaps. Recently however, separation has become more personal and more widespread, affecting many we know and love. Obviously, the most agonizing effect of separation is felt when it happens to our own home, to our own family.

What can we do when we find ourselves in an unhappy marriage? Do we stay married and hope that by some divine intervention our marital problems will magically disappear? Or do we face the complex legal consequences of divorce and hope for a better life after the failed marriage? Granted the parents survive the divorce, will the children be able to?

There are so many difficult questions to answer, and the best way to handle a tricky situation like this is to arm one’s self with knowledge. By knowing the various areas of the law that affects family life, you will have a better understanding of where you stand, what your options are, and where to turn to for help, should the need arise.

The Children’s Act of 1989 Section 8 Orders

The Children’s Act 1989 governs most of the disputes between parents in relation to their children. It defines parental responsibilities as all rights, duties, powers, responsibilities and authority which by law a parent of a child have in relation to the child and his property. Parental responsibility is acquired automatically by both mother and father if they are married. If they are not, then the father can obtain parental responsibility either by agreement with the mother or by a court order. Step-parents and guardians may also acquire parental responsibility subject to existing laws. When the child reaches the age of 18, parental responsibility automatically ceases.

Section 8 Orders is of special interest to separated parents as it deals with residence, contact, specific issue and prohibited steps. A residence order determines with whom the child should live. This can be made in favour of any person and more than one can have it. A contact order is an order that sets out when a person with whom the child lives should make the child available to spend time with another person. It can be in the form of visiting or staying. However, contact orders can be revoked. The specific issue order deals with matters of parental responsibility where the courts have to intervene due to disagreements between persons holding such parental responsibility. A prohibitive steps order specifically directs the person named in the order not to do a specified act without the court's permission.

Applying for Section 8 Orders

Disagreements arise usually between parents, thus they are the common applicants to section 8 orders. However, there are instances where a guardian or an individual who has a residence order in their favour can apply. The right to apply for a residence and contact orders are also given to a person with whom the child has lived with for three (3) years, a spouse or ex-spouse where the child is a child of the family and persons who have the consent of those with parental responsibility.

When the right to apply is not automatic, a permission from the court to make the application must first be obtained. This process is known as obtaining leave to apply. The granting of leave by the court considers several factors: the nature of the proposed application; the applicant's connection to the child; any risk of disrupting the child's life that may cause harm; if the child is being looked after by local authority; the authority's plan for the child's future; and the wishes and feelings of the parent. There are certain circumstances which allow a child to make a section 8 application. Upon the issuance of application, the court shall have the matter listed for a hearing. This opportunity where a Children and Family Court Advisory Support Service (CAFCASS) Officer is present can be used to explore possibilities of reaching an agreement without further court involvement.

Principles Applied by the Court

The basic principle upheld by the courts is putting the child's welfare as the primary consideration when reviewing any application. The welfare checklist as obtained in the Children Act of 1989 is as follows:

• the wishes and feelings of the child considering his age and level of understanding



• the child's physical and emotional needs



• the likely effect on the child of any change in circumstances



• the age, sex, background and other characteristics considered relevant by the court



• any harm the child has suffered or is at risk of suffering



• capability of each parent and any other person considered relevant by the court in meeting the child's needs



• the range of powers available to the court under the Act

The Route to Take After Separation

After going through the motions of the process of separation, parents will do well to remember that separation cannot alter the fact they are still the parents of their children. Where love has gone, let respect take its place. Communication might be difficult after separation but it must remain open and positive. Compromising would be much better than being forced to follow an order imposed by the court.