Bonus Question 5
Private Law Disputes Relating to Children
– bonus question 2
Oliver and Penny lived together for eight years, during which time two children, Abigail,
aged six, and Beatrice, aged four, were born. There is a very strong bond between Oliver
and the two children as he works from home and has spent a great deal of time with
them. Penny has been a successful journalist, travelling all over the world to cover assignments. She has recently met and fallen in love with Jimmy, an out-of-work hippy, who has
an ambition to hitchhike throughout the world. Penny has announced to Oliver that she
might go to join Jimmy and she would then be taking the girls with her. She has also said
that whilst Abigail is Oliver’s daughter, Beatrice is the result of an affair she had with
another journalist, Neil.
Oliver is distraught at the prospect of losing the girls, both of whom he loves very much.
He does not believe Penny’s story about Beatrice, but, even if it is true, he says it does not
change the way he feels about Beatrice.
Advise Oliver.
How to Read this Question
Oliver is concerned about maintaining a relationship with Abigail and Beatrice. It is therefore necessary to consider child arrangement orders. The advice is potentially complicated
by the fact that Beatrice may not be his biological child.
Applying the Law
Abigail – he is her father
(Children Act 1989 s 10(4)(a))
Can Oliver automatically
apply for a child
arrangement order?
Oliver can apply
automatically
Beatrice – he is her father (CA 1989 s 10
(4)(a)), if not he has lived with her for at
least three years (CA 1989 s 10(5)(b))
Welfare checklist (CA 1989 s 1(3))
The no delay principle (CA 1989 s 1(2))
Can Oliver automatically
apply for a child
arrangement order?
2
Oliver can apply
automatically
Beatrice – he is her father (CA 1989 s 10
(4)(a)), if not he has lived with her for at
least three years (CA 1989 s 10(5)(b))
Q&A Family Law
Welfare checklist (CA 1989 s 1(3))
The no delay principle (CA 1989 s 1(2))
The no order principle (CA 1989 s 1(5))
Welfare is paramount
(CA 1989 s 1(1))
Do courts favour children living with their mothers?
Brixley v Lynas (1996)
Courts favour siblings staying together –
Adams v Adams (1984), C v C (Minors: Custody) (1998)
Presumption that parental involvement promotes
child’s welfare (CA 1989 s 1(2A),
Children and Families Act 2014 s 11)
If Oliver has parental
responsibility, Penny
will have to apply for a
specific issue order to
take the children abroad
if Oliver does not have
parental responsibility,
he will have to apply for a
prohibited steps order
to prevent the children
going abroad
Does Oliver have parental
responsibility? (CA 1989 s 2(2),
CA 1989 s 4(1))
Taking the
children abroad
If a child arrangement order
is in place then the consent
of every person with parental
responsibility is needed before
the child/ren can be taken
abroad (CA 1989 s 13(1)(b))
If Oliver is Abigail and Beatrice’s father,
he can apply automatically (CA
1989 s 10(4)(a)). If he is not Beatrice’s
father, he will need leave (CA 1989 s 10(9))
Child’s welfare is paramount
(CA 1989 s 1(1))
ANSWER
Oliver’s position regarding the two children, Abigail and Beatrice, is somewhat complicated as he is not married to their mother, Penny, and there is a possible dispute over Beatrice’s paternity. Penny has parental responsibility for both girls (Children Act 1989 s 2(2)),
and this is defined in the Children Act 1989 s 3(1) as ‘all the rights, duties, powers and
responsibilities and authority which by law a parent of a child has in relation to the child
and its property’. As a result Penny can choose where her daughters should live, and she is
under no legal obligation to involve Oliver in these decisions. If Oliver wishes to be
Bonus Question 5
3
involved in the future upbringing of the two girls, he will need to apply for a court order
under the Children Act 1989 s 8.
A natural father of a child can apply for a s 8 order as of right, and so Oliver can definitely
make an application in relation to Abigail (Children Act 1989 s 10(4)). The position
regarding Beatrice is more complex. If she is Oliver’s child then he has the right to apply
for a s 8 order (Children Act 1989 s 10(4)), but if she is not his child then his right to apply
must be based on the fact that Beatrice has lived with him for at least three years (s 10(5)).
This permits an application for a child arrangement order which controls where the child
lives and who has contact with the child, but not for a prohibited steps order or a specific
issue order, where leave would be required. Section 10(9) provides the criteria to be
applied in deciding whether to grant leave. In the present case, Oliver has a close relationship with Beatrice and she is not likely to be harmed by any disruption, and therefore he
would probably be given leave to make his s 8 application. Leave will usually be granted to
those with a genuine interest in this child’s welfare, and would be refused to those who
were merely seeking to meddle and interfere.
As well as the issues relating specifically to a s 8 order, it may be desirable to deal with the
issue of Beatrice’s paternity. As Oliver and Penny were never married, there is no assistance from the presumption of legitimacy. Consequently, Beatrice’s paternity will need to
be settled by way of blood tests or DNA genetic testing. These can be ordered by the court
(Family Law Reform Act (FLRA) 1969 s 20(1)), and if Penny refuses to comply without good
reason then adverse inferences can be drawn (FLRA 1969 s 23(1)). In the present case, it
seems likely that testing would be ordered, as it is usually in the child’s best interests to
know who his or her father is: S v S (1972).
In determining Oliver’s application for a s 8 order, it must be borne in mind that the
welfare of the child is the paramount consideration in issues concerning its upbringing:
Children Act 1989 s 1(1). Thus, the court will consider what is in Abigail’s and Beatrice’s
best interests, not necessarily what the parties want. Oliver would be advised to apply for
a child arrangement order so that Abigail and Beatrice could stay with him. Any unresolved issues could then be dealt with by way of a prohibited steps or specific issue order.
In dealing with an application for a s 8 order, the court must have regard to the non-interventionist policy in s 1(5) of the Act. This provides that the court should not make an order
unless the making of an order is better than not making one. The policy of the Act is to
encourage consensus and agreement wherever possible, but unfortunately Oliver and
Penny seem unlikely to agree where the children should live, and so a court order may be
necessary.
Having become involved, the court must recognise that delay will often prejudice the
welfare of the children (s 1(2)) and, with this in mind, a timetable for the future conduct of
proceedings must be set (s 11). The welfare of the children is the paramount consideration
(s 1(1)), and the statutory checklist in the Children Act s 1(3) provides a list of factors to be
considered when relevant.
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Q&A Family Law
Under the Children Act 1989 s 1(3)(b) the court will consider the physical, educational and
emotional needs of the children. Here the children are both young girls, and traditionally
there has been a preference for keeping young girls with their mother: Brixley v Lynas
(1996), Re W (A Minor) (1983). In Plant v Plant (1982), it was stressed that usually there are
obvious advantages in leaving young children in the care of their mother, unless she is
incapable or unsuitable. This would in the past have favoured Penny but, in Re H (A Minor)
(1980), it was emphasised that times had changed and that many fathers were as capable
as mothers of looking after small children. Ultimately, it is a question of the welfare of the
children, and there are obvious advantages to young girls being with their mothers, especially through puberty. However, in the present case, the mother has been frequently
absent, and the girls have been cared for predominantly by their father. There is nothing
to suggest that he has been unable to minister to their needs, and so it should not necessarily be assumed that the girls will go to their mother.
It is obviously necessary to provide the children with a caring, stable upbringing, and
Oliver would be able to do this. Penny, on the other hand, has had a busy career and is
proposing to join her new boyfriend, hitchhiking around the world. This lack of a stable
home base and the possible educational disadvantages may well count against Penny;
May v May (1986) shows the importance attached to a good education.
The court will try to ensure that Abigail and Beatrice remain together, as siblings derive
considerable support from one another: Adams v Adams (1984). The likely effect of change
must also be considered, as the tendency is to preserve the status quo and avoid unnecessary disruption: J v C (1970). The girls have been used to their home and being looked after
by Oliver while Penny was away working. To uproot them from this, remove Abigail from
school and subject them to the peripatetic existence that Penny has in mind would arguably be detrimental to their welfare. Oliver is able to provide greater continuity of care
and, in Riley v Riley (1986), the court expressed a preference for the children living with a
parent who could provide continuity of care in one place as opposed to the parent who
was constantly on the move.
The age, sex and background and any other relevant characteristics of the children are
considered (Children Act 1989 s 1(3)(d)), together with the risk of harm to the children
(Children Act 1989 s 1(3)(e)). There is no suggestion that Jimmy is an unsavoury character
or would harm the girls, but the travel plans of Penny and Jimmy seem unconventional
and possibly hazardous for such small children.
Lastly, the capabilities of the parents and any other relevant person of meeting the child’s
needs must be considered (Children Act 1989 s 1(3)(f)). There is often an advantage if a
parent can show that they have an established and suitable relationship with a parent
substitute, as the child’s interests are often better served in a two-adult household. Here,
Jimmy and Penny’s relationship is very new, and Jimmy is an unconventional person who
does not seem to fit the stereotype of the replacement father. Oliver has no partner that
we are told of, but he has been a loving and caring parent to the girls and has a good
chance of obtaining a child arrangement order.
Bonus Question 5
5
However, if the court grants a child arrangement order in favour of Oliver, then he must
also be given parental responsibility to enable him properly to care for the girls: s 12(1). The
parental responsibility of Penny will not end just because a residence order has been
made in favour of Oliver. Penny should still continue to play an important part in her
daughters’ lives, and it is likely that she would be given generous contact with the girls. In
Re H (Minors) (Access) (1992), the court stressed that it would usually be in the child’s best
interests for contact to be maintained with natural parents. Furthermore, there is now a
statutory presumption in favour of parental involvement (Children and Families Act 2014
s 11, Children Act 1989 ss 1(2A), 1(2B)).
In the unlikely event of Penny being granted a child arrangement order stipulating that
the children live with her, then again it is probable that Oliver would be granted generous
contact with the girls. A person in whose favour the child arrangement order is granted
cannot remove a child from the jurisdiction for more than one month without the written
consent of everyone with parental responsibility or leave of the court: s 13(1)(b). Much
would depend therefore on whether Oliver would have parental responsibility. As Oliver
and Penny were unmarried, he would not automatically have parental responsibility (Children Act 1989 s 2(2)). If Oliver is named on the birth certificates of Abigail and Beatrice
then he will have parental responsibility (Children Act 1989 s 4(1)(a)). Moreover, the fact
that he has been named on the birth certificate raises a presumption that he is the biological father of Abigail and Beatrice. If Oliver is not named on the birth certificate, he
could apply to court for a parental responsibility order (Children Act 1989 s 4(1)(c)). The
court would use the welfare principle (Children Act 1989 s 1(1)) to determine whether to
make the parental responsibility order and given Oliver’s relationship with Abigail and
Beatrice it would clearly be in their welfare for him to have parental responsibility. The
only difficulty for Oliver is that the parental responsibility order under s 4(1)(c) is only available to a child’s biological father, and if Oliver is not in fact Beatrice’s father, he would not
be able to get a parental responsibility order.
If Oliver does not have parental responsibility, he can still prevent Penny taking Abigail
and Beatrice abroad if he obtains a prohibited steps order. Prohibited steps orders are
used to prevent a parent exercising their parental responsibility in a particular way. The
power to take a child out of the jurisdiction is one of the powers that a parent with parental responsibility would have (Children Act 1989 s 3(1)) and therefore this would seem to
be an appropriate use of a prohibited steps order. If Oliver is the biological father of
Abigail and Beatrice he has an automatic right to apply for a prohibited steps order (Children Act 1989 s 10(4)). If he is not Beatrice’s father he would need the leave of the court to
apply but would be very likely to satisfy the test in s 10(9) and be granted leave to apply.
The court would decide whether to grant the prohibited steps order based on the welfare
of Abigail and Beatrice (Children Act 1989 s 1(1)) and would use the welfare checklist to
determine what was in their welfare (Children Act 1989 s 1(3)). The court may be concerned about the disruption to Abigail and Beatrice of leaving Oliver, who has been their
primary carer, and travelling round. They may worry about how chaotic this might be and
whether Penny and Jimmy will be able to fully meet the girls’ needs.
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Q&A Family Law
To conclude, it would seem that Oliver should seek a child arrangement order to enable
the two girls to live with him, and this, in the circumstances, should be forthcoming. In
the course of this application, it may be that Beatrice’s paternity will be resolved. In any
event, Oliver should be allowed generous contact and should seek to prohibit the taking
of the children overseas, by way of a prohibited steps order.