When parents separate whether they are married or not a number of important issues relating to the upbringing of any children of the family can arise.
It is always best for all the parties involved and most particularly for the children if agreement can be reached on those issues or if possible some sort of compromise.
Sometimes those issues are extremely emotive or may be of greater importance to one of the parents than the other.
Examples of such issues are:
- what school a child should go to
- what religion if any a child should be bought up as
- whether a child should be circumcised
- if one parent wants to take the child permanently out of the jurisdiction of England & Wales to live
- what surname a child should be known by
- whether a child should receive medical treatment or be vaccinated
If you have been unable to reach agreement with the other parent regarding a particular issue such as one of those listed above then provided you have parental responsibility for that child you can apply to the Court under Section 8 of the Children Act 1989 for a Specific Issue Order. If you are unsure whether you have parental responsibility see our separate article on this subject or speak with one of our family lawyers.
A Specific Issue Order does exactly what it says on the tin – it enables the court to determine a specific issue which has arisen or may arise in relation to a child
A Specific Issue Order cannot be made in respect of a child over the age of 16 except in exceptional circumstances
Some real life examples of specific issue orders being made are:
- In a case in 2012 the Court of Appeal rejected the fathers appeal against a decision of the lower court for a specific issue order in respect of the education of five children then aged 11,10,8,5 & 3. The family were from the Chasidic Orthodox Jewish community. The mother wanted to enrol the children in a new co-educational school where she felt they had greater opportunities. The father wanted the children to remain where they were and lead strict orthodox lives. The Court of Appeal found that the Judge in the lower court had correctly applied the law by considering all the circumstances and all the evidence to determine what was in the best interests of the children.
- More recently the Court ordered that 2 girls aged 15 and 11 should receive the MMR vaccination against their own and their mother’s express wishes. The Judge having heard oral evidence from each of the parents and from CAFCASS (Children and Family Court Advisory and Support Service) decided that it was in the girls’ best interests for them to be vaccinated.
- In a case several years ago I acted for a mother who had come to England from Italy as an Au Pair. She fell pregnant but did not marry the father. The relationship broke down and she wanted to return to her family in Italy with the little boy who was then aged about 4 years. She had few friends and no family support in this country. Following a contested final hearing where both parties gave oral evidence and evidence from CAFCASS the Judge ruled in the mother’s favour as to do otherwise would have forced her to stay in the UK with her boy as she would not return to Italy without him. The Judge gave the father very generous contact. The Judge considered it to be in the boy’s best interest to allow the mother to return to her native country
These type of cases are very difficult for all concerned because of the often emotional issues involved. It is usually impossible to predict the likely outcome.
In all cases the court will consider all the circumstances and must have regard to the following:
i) the principle that the child’s welfare is the paramount consideration
ii) a statutory checklist of factors including the ascertainable wishes and feelings of the child (in light of his or her age and understanding); his physical, emotional and educational needs; age, sex ,background and any other characteristics which the court considers relevant; the likely effect on him or her of any change in circumstances and any harm which he or she has suffered or is at risk of suffering
iii) the principle that it must not make any order unless it considers that doing so would be better for the child than making no order at all. This is called the “no order principle”
For a confidential initial discussion with one of our specialist family lawyers contact us.
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