Section 8 orders on the public-private law divide^*

Abstract

While section 9(2) of the Children Act 1989 prevents a Local Authority from applying for a child arrangements order directly, a case file study of residence and contact orders made in 2011 found that a significant number of applications for residence orders in the County Court were supported and sometimes even instigated by local authority children’s services (Harding & Newnham, 2015). The findings of the study demonstrate that residence orders often formed part of solutions offered to the family and can even operate as an alternative to formal public law remedies in situations where the parents are no longer able to provide care, and grandparents or other relatives take over. In these ‘hybrid cases’ private law orders are used to resolve situations on the fringes of public law action and, in some cases, divert cases from voluntary accommodation or formal care proceedings. This article raises questions about whether cases are being diverted to private law remedies in an appropriate manner and argues that closer scrutiny of the practice is required to ensure that the rights of parents, children and kinship carers are appropriately respected.

Keywords:

• Section 8 orders
• kinship care
• public law proceedings
• child arrangements orders
• diversion from care proceedings

Notes

1. In Masson, Pearce, and Bader (2008) it was found that residence orders were made in 23% of care applications.

2. As inserted by the Children and Young Persons Act 2008.

3. Bainham (2013, p. 138) notes that in the 1980s reform proposals of private and public law were initially separate exercises carried out by separate bodies.

4. Mediation Information and Assessment Meetings (MIAMs) were made compulsory by s. 10 of the Children and Families Act 2014.

5. C30 was the only case of this type where the mother had actually been the child’s primary carer prior to the litigation, but she had lived next door to the maternal grandparents and acknowledged that they had played a significant part in the child’s daily care.

6. Section 22(4)(5) of the Children’s Act 1989 merely requires local authorities to ascertain and give due consideration to the wishes and feelings of parents and children before making decisions about children they propose to look after, so far as this is reasonably practicable.

7. The making of an order for the child to live with a relative ends ‘looked after’ status: Re B [2013] EWCA Civ 964; GC v LD & Ors [2010] 1 FLR 583.

8. A residence order did allow the holder to claim Child Tax Credit.

9. Which would entitle them to a means-tested special guardianship allowance under Regulation 11, Special Guardianship Regulations 2005.

10. One reason for the introduction of Sections 22A to 22C into the Children Act by the Children and Young Persons Act 2008 was to prevent local authorities from making private arrangements with relatives or friends in order to avoid their duties to ‘looked after’ children.

11. A good description of the assessment process is found in Department for Education (2010) paras [5.1]–[5.20].