Procedure - overviewJurisdiction

An application for a residence; contact; prohibited steps or specific issue order under the Children Act 1989 (ChA 1989), s 8 (‘a s 8 order’) may be made as a free-standing application under ChA 1989 or within other prescribed family proceedings, eg the Civil Partnership Act 2004.

The question of jurisdiction arises where there is an international element. Jurisdiction of the courts in England and Wales to make a s 8 order (other than one varying or discharging an order) is regulated by the Family Law Act 1986 (FLA 1986), Pt 1 and Brussels II bis (Council Regulation (EC ) NO 2201/2003). The court has jurisdiction if:

The High Court also has an inherent power to make certain orders in relation to children. Those orders are defined in FLA 1986 and the court shall not make such an order unless:

The Revised Private Law Programme

In November 2004 the President of the Family Division issued guidance in relation to the implementation of a new framework for private children law cases called the Private Law Programme. This has now been incorporated as Practice Direction 12 B to the Family Procedure Rules 2010 (FPR 2010). The programme is based on an overriding objective, the application of which will safeguard the welfare of the child. The objective covers three areas, including that the court deal with every case justly, expeditiously, fairly and with the minimum of delay.

There are three stated principles:

Each court has to set up its own programme individually. The courts will look at whether alternative dispute resolution can be used instead of the litigation process. At an early hearing the court will seek to clarify the issues, timetable the proceedings and utilise the opportunities for referrals. It is intended that the CAFCASS practitioner should be present at the first hearing.

CAFCASS

The Children and Family Court Advisory and Support Service is a statutory body. It brought together the work of the Family Court Welfare Service, the guardian ad litem and the Reporting Officer Service. CAFCASS has a number of roles:

The CAFCASS officers fulfil a number of roles, including:

The CAFCASS Board issued guidance called Service Principles and Standards in 2003, setting out, among other things, the role of the CFR, guidance on the requirements of preparing a report and guidance on the CAFCASS officer's role as a mediator and on privileged discussions. The CAFCASS Practice Note sets out general guidance for the involvement of CAFCASS.

When a report has been ordered by the court, copies will be sent to the parties or their advisors unless the court exceptionally orders otherwise. Parties must be advised that the report is confidential and the contents should not be disclosed to anyone other than the parties and their advisors. Where the recommendations of a report are not agreed, the CFR may be required to attend to be questioned about the report. The court is not bound by a recommendation of a report but if the court departs from the recommendations it must give clear reasons for doing so. Generally, where there are clear recommendations, the court will only depart from a report where it has heard evidence from the CFR.

Separate representation of a child

A child may begin and prosecute any family proceedings only by a next friend, and defend by a guardian ad litem. Where it is considered appropriate for a child to be made a party, the court will usually refer the case to CAFCASS Legal. The practice note sets out the guidance for CAFCASS involvement. The President's Direction: Representation of children in family proceedings pursuant to rule 9.5 of the FPR 1991 (April 2004) gives guidance on when it will be appropriate to make a child a party.

A child can begin or defend proceedings where they have obtained leave to do so or where a solicitor considers that they are able, having regard to their understanding in relation to the proceedings, and has accepted instructions to act. The court has to be satisfied as to the child's understanding.

Practice directions

To provide guidance in cases involving children, various practice directions have been given. For example, the President's Practice Direction of 5 April 2004 provides guidance as to whether or not to make a child party to proceedings.

The Practice Direction: (residence and contact orders: domestic violence and harm) of 14 January 2009 provides guidance on the practice to be followed where domestic violence is alleged or there are reasons to suppose it has occurred.