In this essay I will discuss the section 8 order. The section 8 order is a piece of legislation which is a part of 'The Children Act 1989'. This part deals with the child's welfare when a family breakdown. It's mainly concerns with the proceedings of child's welfare, residential, Parental Responsibilities (PR), care, and adoption or fostering. To explain the section 8 order, I will use two case studies to describe the proceeding procedure. The Children Act consists of 108 sections, which makes it a relatively large piece of legislation (Allen, 1992: p.12).
Part II of the Act is designed to change the range of orders which are associated with 'private' disputes in family and matrimonial law formerly order for custody, access, care and control (Kent et al, 1990: p. xvi). The types of section 8 order are listed below: A Residential Order: helps to arrange the settlement with whom the child can live with. Any one can appeal for RO except the child. If the couple was married at the birth of the child or subsequently got married after the child's birth, then both parents have PR.
If parents have a dispute over the RO then the court can decide that the child will share half the time with each of parents. When parents are not married then only the mother has the PR. Mother can transfer PR to her partner or the partner can apply to courts for PR. If one or both of the parties settle in another relationship, they still have PR for their child. Stepfather or mother can apply for PR and RO. Parents can't lose their PR, unless the child has been adopted or fostered by others.
Foster parents can apply for RO if they have agreement with the Local Authority. For example, if aunt applied for a RO, then PR will be given to her by adoption or other court orders. RO and PR are linked together. If court decides a RO for aunt then PR will removed from actual parents and will be given to aunt or whoever applied. Courts can make section 8 order for any person who applies for PR. LA can't apply for RO but can apply for Care Order. A Contact Order: helps to arrange the settlement with whom a child can visit or see, and who can see and visit the child.
The child can apply for a Contact Order. Any parents or guardian, who have a RO in relation to the child, have a right to apply for a Contact Order. The Contact Order ceases to have effect if the parents live together for a cautions period exceeding six months [s11(6)]. When the child reaches the age of 16 (18 in exceptional circumstances) [s91(10)], the court can not make a contact order which is to have affect beyond the child's 16th birthday [(s9(6)].
The foster parents can apply for a Contact Order if the child has lived with them for three years proceeding the application, providing their names in the Contact Order list. RO or PR gives a right to parents and guardians to apply for a Contact Order. Any one, whose name is on the Contact Order, can apply for its variation or discharge [s10(6)]. LA can't apply for a Contact Order. But if the child is under the care of LA, then a Contact Order can't be made [s9(1)].
A Specific Issue Order: gives directions for the purpose of determining a specific question which has arisen, or which may arise in connection with any aspect of PR for a child. The court considers the circumstances and will make order in the interest of the child. A Specific Issue Order enables a parent and others to bring a particular question relating to the exercise of PR to be determined by the court, e. g. a question concerning a child's schooling [s8(1)]. Any person or guardian who have RO in relation to child has the right to apply [s10(4)].
The court can't make a Specific Issue Order to achieve a result, which could be achieved by a RO or Contact Order, or any way denied to High Court [s100(2)] and [s9(5)]. However, the court can make order which directs how it is to be carried out, imposing conditions, fixing period limit or with such incidental, supplemental or consequential provision as the court thinks fit [s11(7)]. A Prohibited Steps Order: is an order, which can stop the parents or guardian to take or make certain changes without the consent of the court and any other person who have PR and RO.
Under this order no one is allowed to remove the child from the UK and are not allowed to change the child's name without the consent of other person who have PR for the child. They can ask for a Court Order for a limited holiday. The court can't make a Prohibited Steps Order when a child is in care of LA. Case 1: Tony and Jane both have PR for the children [s3(1)] and [s2(1)-(3). If Jane allows Tony to live in the house the children may be at risk. The Law made it clear that parents got have duty to protect their children from harm, ill treatment and neglecting the child's needs is an offence.
If "there is a risk of suffering or likely to suffer significant harm or likelihood of harm, then it's a duty for LA to protect the child/children in the area by applying for a Care Order" [s1(4)]. But LA can't apply for RO [s9(2)]. The Court considers the children's physical, emotional, background and risk of harm [s1(3)] before making any order. The court faces restriction to make a section 8 order such as, the Courts can't make any section 8 order, other than a RO, with respect to a child who is in the care of a LA.
The Courts can't make such an order in favour of a LA for a resident and the LA can't apply for a RO or for a Contact Order (Dodds, 1994: p. 266). A Contact Order can't be made in relation to a child in LA care [s9(1)]. The Courts can make a prohibited step order on it's own motions without an application being made [s10(1)(b)]. If Jane is concerned for her and children's safety, under the Domestic Violence and The Matrimonial Act 1983 and The Family Law Act 1996, she is allowed to apply for a non-molestation order, 'ex parte', and exclusion orders.
Under The Family Law Act 1996 (ss30-41) the child can make an application, and likewise the court in the case of family proceeding. This new legislation empowers the courts to exclude an abuser, rather than removing a child (victim) into care. (Bryan and Martin, 1997: p. 334) Under the Children Act 1989, parents in divorce or separation proceeding are encouraged to make their own decisions regarding to their children's future.
The child has the right to know who are his/her actual parents and their address or other information concerning or changes are going to happen. A child can be fostered privately (LA should be notified). The "Partnership" involves parents and other authorities that are concerned to achieve better prospects in future for children. The parents have the right to know or make decisions, where the child will be living, who is going to adopt or foster the child or anything else in the relation of the child.