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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Specific issue orders - overviewGeneral principles
A specific issue order may be made under the Children Act 1989 (ChA 1989), s 8. It gives directions for determining a specific question that has arisen, or that may arise, in connection with any aspect of parental responsibility for a child.
It can be used to determine questions about a child's upbringing, eg whether the child should go to a state school or be educated privately. A specific issue order can be made on its own or with a residence or contact order.
ChA 1989 provides for certain categories of applicant who are entitled to apply for an order without leave (permission), including:
any parent or guardian or special guardian
any person in whose favour there is a residence order in favour of a child
any step-parent who has parental responsibility
Anyone not specifically entitled must obtain leave (permission) of the court. The factors to which the court should have regard when deciding whether to grant leave (permission) are contained in ChA 1989 and include the applicant's connection with the child.
Proceedings may be issued in the family proceedings court, the county court or the High Court: see Procedure.
The applicant must file a Form C100 and, where there is an allegation of abuse, violence or harm, a C1A. The applicant must serve the respondent with the prescribed forms and file a statement of service. A directions appointment, which may be a first hearing dispute resolution appointment, will be listed by the court.
If leave (permission) is required, Form C2 is filed, setting out the reasons for the application with a draft of the application in respect of which the order is sought.
Restrictions on making a specific issue order
ChA 1989 sets out the circumstances in which the court should not make such an order, including:
where a child is in the care of the local authority
where it in any way denies to the High Court the exercise of its inherent jurisdiction with respect to children
Applications for leave (permission) to remove
Where a parent of a child wishes to remove that child from the jurisdiction of England and Wales, leave of (permission from) the court may be required. Removing a child without the required consent may result in an offence being committed under the Child Abduction Act 1984.
If a residence order is in force, there are restrictions on removing a child from the UK and leave (permission) may be required.
Where there is no residence order or special guardianship order, no one shall remove a child permanently from England and Wales without the written consent of everyone who has parental responsibility for the child or leave of the court. If there have been no other proceedings, an application for a specific issue order may be made.
There are restrictions on removing a child who is a ward of court.
In considering an application to remove a child permanently from the jurisdiction, the child's welfare will be the court's paramount consideration and it must apply the statutory checklist in ChA 1989. The Court of Appeal has given guidance on the principles to be applied in the 2001 case of Payne v Payne. However if the case involves shared care arrangements then rather than following the guidance in Payne v Payne the Court of Appeal has held that the judge should exercise his or her own discretion by applying the welfare checklist.
The effect of a specific issue order
A specific issue order determines the issue and permits the applicant to take the steps required by the order, eg changing a child's surname. A parent with parental responsibility should be consulted before another person with parental responsibility makes an important change in, for example, a child's education. Where those with parental responsibility cannot agree on education, they may apply for a specific issue order. Such an order may also be combined with a prohibited steps order.
Enforcement of a specific issue order
Like other s 8 orders, a specific issue order may, if made in the magistrates' court, be enforced there under the Magistrates' Courts Act 1980 by way of a fine or committal. An order made in the High Court or county court may be enforced by contempt of court proceedings. The order must be worded appropriately. There are also provisions in the Family Law Act 1986 that assist in enforcement, depending on the nature of the order. The court may consider making a further s 8 order to assist in enforcement.
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