Child Orders

The Children NI Order 1995 applies to proceedings in all courts. It applies in relation to children in the context of divorce, separation, and nullity. However, divorce is largely separated from childcare issues other than in exceptional cases.

In the context of orders in divorce and judicial separation, the court must consider where there are children of the family, the arrangements made or proposed for upbringing the welfare

In all proceedings, the welfare of the child is paramount.The paramount consideration of the child’s  welfare implies that the course to be followed is that which is most in the interest of the child’s welfare.

There is a presumption that the parties should be free to make their own arrangements. An order should only be made where  necessary.

Parental right and responsibility will not terminate unless an adoption or other order is made. This would be highly exceptional

In family law proceedings the court may  if it considers the arrangements are unsatisfactory, make a direction to the local health authorities.

The legislation requires that courts deal with matters without undue delays. A timetable should be drawn up in view to determining the matter without delay. Direction should be given as necessary be practicable to ensure that the timetable is adhered to.

Parents or guardians of the child and persons in whose favour a residence order is in force are entitled to apply to court without leave in relation to matters affecting the child. A guardian should be heard in applications for orders in relation to children and variation of the orders.

There is a checklist of considerations.  The factors are as follows:

• The ascertainable wishes and feelings of the child concerned considered in light of age and understanding.
• The child’s physical, emotional, and educational needs.
• Likely affect on the child
• Child’s age, sex, background and characteristics which are relevant
• Any harm which the child has suffered or is in risk of suffering.
• How capable in meeting  the child’s needs is each parent or others with respect to whom the matter is relevant.

A range of powers are available to the court.

The following may apply for a residence or a contact order:

• Party to marriage in relation to which the child is a child of  the family
• Person with whom the child is living for three years.
• Person in whose favour a residence order has been made
• The Trust in relation to whom a care order has been made
• Every person with parental responsibility

In other cases, the consent of the court is necessary for an application. This includes the child and others. In the case of third parties, the following  factors are considered;

• the nature of the application,
• the connection with the child,
• the risk that the application will damage  the child’s life to a harmful extent and
• where the child has been looked after  by the authorities, its plan for the future and the wishes and feelings of the child’s parents.

The court may  make orders in relation to a child if it considers that such an order should be made notwithstanding that no application has been made. This may take place in any stage of the family proceedings. This applies to a  child under 16 years or other child  in relation to whom the court direct the legislation should apply.

The 1995 legislation provides for a range of orders.

A residence order provides for arrangements as to whom the child should live with. It is equivalent to a custody order under older legislation.

A residence order is usually made in favour of a single parent or guardian. The order should be made in favour of the person specified. .A residence order does not displace parental responsibilities or rights of guardianship.

The court may place conditions on a residence order. A residence order continues until varied or discharged by another order until the child reaches the age of 16. The order ceases if the person in whose favour lives with another person for a continuous period of six months.

A contact order requires a person with whom the child lives to afford another  to have other contact with the child. A parent or guardian or other person for whose benefit a residence order has been made may apply for a contact order. Other persons may apply with the consent of court. A contact order may allow for overnight stays and other reasonable contact.

The matter is determined by the child’s best interest. There is a presumption that it is in the interest of the child, have contact with both parents. The would only be displaced where the behaviour or conduct of the parent poses a risk of harm.

A contact order lasts until the child reaches 16, is varied by a court or the persons concerned  live together for six continuous months or more.

The specific issue order allows the applicants to apply to court to seek directions in relation to a specific aspect issue in relation to the child. The applicants will generally be the parents.It must relate to a matter affecting parental responsibilities.

The application may relate to specific matters such as medical treatment, education, et cetera. The order, directs the matter in the particular – in which the particular issue is dealt with.

A prohibited steps order is an order prohibiting steps that a parent could take in accordance with his parental responsibilities of a kind specified in the order without the consent of the courts. An application can be made by one side without notice a parent or guardian may apply as of right and others may apply with the leave of the court

The legislation also provide other related orders in family proceedings:

A parental responsibility order applies where the child’s parents are not married. An unmarried father may seek to establish parental rights to this mechanism. The order may be refused on the grounds of the father’s misconduct to the mother or child. Where it is in the best interest of the child, the father has shown commitment and has a great attachment exist and the father’s motivations are  proper, an order will be made.

An family assistance order may be made to make a suitably qualified officer   available to advise  assist and befriend any person named in the order.  The person  may include parents or guardians, persons with whom the child is living and the child himself.

The order will require exceptional circumstances and the consent of certain parties. The officer must be permitted to visit while  the order continues up to a six-month period, subject to variation.

The court may determine in any family proceedings where issues arise affecting the welfare of the child work, that it is appropriate to make a care or supervision order.  The court may direct an appropriate party to undertake an investigation.

An order may be made appointing a guardian if the child has no parent with parental responsibility or a residence order has been made in favour of parent or guardian who has died.