The different orders the family court can make.
Family Assistance Orders
What is a Family Assistance Order?
A Court can make a Family Assistance Order (FAO) as a means of providing social work support to families experiencing difficulties after separation or divorce. The Court conveys a duty on a CAFCASS Officer or Social Worker to befriend, advise and assist anyone named in the order. This is often in relation to facilitating and monitoring contact.
Who can be named in the order?
The order can include the parents or guardian of the children, the children themselves, and anyone with whom the children live or who are named in a Contact Order allowing contact with the children.
Can I apply for a Family Assistance Order?
No. This type of order is only made when a Judge considers it to be appropriate, rather than when a parent makes a formal application.
It may be possible during the course of an application for another form of order, such as a Contact or Contact Enforcement order, to ask the Court to consider making a Family Assistance Order.
When is a Family Assistance Order made?
Family Assistance Orders will normally only be made when all the people named in the order are in agreement with it being made.
How long does a Family Assistance Order last?
For up to 12 months, or shorter if a time period is specified in the order.
What can CAFCASS do under an FAO?
They may refer matters back to the Court and request a variation to any Child Arrangements, Prohibited Steps Specific Issue Order or historic Contact or Residence order that is in force in respect of the children named in the Family Assistance Order. The decision as to whether to vary the order remains with the judge. Neither CAFCASS (nor Social Services) can vary or suspend a court order themselves (sometimes they need reminding of this!).
CAFCASS's Family Assistance Order Guidance:
Family Assistance Order Guidance Overview of Guidance
This guidance explains what family assistance orders are, and the limited circumstances in which Cafcass practitioners should recommend them.
1.0 What a Family Assistance Order means for Cafcass
1.1 The legal definition of a family assistance order is set out in s16 of the Children Act 1989, which enables a court to make an order requiring a Cafcass officer or an officer from a local authority to advise, assist (and where appropriate) befriend any person named in the order. If an FAO is made alongside a contact order a Cafcass officer may also be directed to advise and assist on establishing, improving and maintaining contact. Where a FAO is made alongside other types of section 8 orders the court can direct that the Cafcass officer must report to court on specified matters relating to the section 8 order and/or the FAO, including whether either order ought to be varied or discharged.
1.2 A family assistance order (FAO) is a voluntary order, in that the court may not make the order without the consent of everyone (other than any child) named in the order. In practice, particularly since the introduction of the framework provided by the Private Law Programme, the number of cases in which a FAO will be necessary and appropriate for Cafcass are limited.
1.3 A Practice Direction has been issued to the judiciary (attached as an Annex to this guidance) which requires the court to consult the appropriate officer of either Cafcass or local authority children’s services before making an FAO. This provides for the court to be advised by the appropriate officer about the potential benefits of an order and the optimum duration, to help ensure that a FAO is made in circumstance in which it is likely to be beneficial for the children and family. 2.0 Deciding when to recommend a Family Assistance Order
2.1 A family assistance order may be suitable when there is an identifiable and consensually agreed task concerning the child’s welfare which is too difficult for a family to undertake without specialist assistance from Cafcass or a local authority. Practitioners should only consider recommending a FAO to the court where there are identified child welfare needs which are likely to be met only with assistance from Cafcass beyond: the usual level of involvement required for a single or multiple issue report; or Family Assistance Order Guidance Full implementation by March 2011 Page 2 of 5 what can incorporated into an order for a Contact Activity condition or direction; or any other type of parenting intervention (mediation, Parenting Information Programme) and where the adults who would be named in the order are likely to give their informed consent to it.
2.2 In all cases the practitioner should, before recommending a FAO, consider whether there are other services outside of Cafcass (such as therapeutic interventions) which would be better placed to assist the family.
2.3 When thinking through the suitability of a FAO it may be helpful to consider the following criteria: i) Would a FAO contribute to improved safeguarding and promotion of the welfare of the child/ren? ii) Does the initial assessment indicate that the issues in dispute can be identified, narrowed and agreed by the parents and child (subject to age and understanding) and given a specific focus suitable for a FAO? iii) Does the initial assessment identify sufficient potential for parental cooperation to make a FAO appropriate? iv) In your professional judgment, are the parents/carers sufficiently able to differentiate their needs from those of their child so as to make a FAO a viable means of post-proceedings intervention? v) Can practical outcomes be identified which are clearly beneficial for the child/ren and which will only be achieved with the support of Cafcass? For example, helping parents to work together to better understand their child’s needs, and support their children to adjust to changed living arrangements; helping parents to develop suitable contact arrangements and maintaining key relationships within their extended family networks – a FAO should only be recommended if these outcomes can only be reached with specific Cafcass input. vi) Has the child been enabled (subject to age and understanding) to express their views about what s/he might like to happen in the family? Can the child play an active part in the FAO? vii) Are there additional resources which may support the sustainability of a FAO for this child and family? (i.e. support from the extended family, or the support of other agencies for the child and/or family members). viii) What report, if any, might most appropriately be provided to the court at the conclusion of the order and/or during its operation? Family Assistance Order Guidance Full implementation by March 2011 Page 3 of 5
2.4. If the practitioner believes that a FAO would safeguard and promote the welfare of a child, this should be reflected in the report to the court. In some cases, where the proposal for a FAO originates from the court itself, it may be necessary to request an adjournment to allow sufficient time to assess the family and to make sure there is a full and informed agreement of the adults who are to be named in the order1. Though not a statutory requirement, it is good practice to ascertain the views of the affected child/children about the proposed order.
2.5 As in all Cafcass interventions it is important to involve the family in the analysis and decision making process. However, in the case of a FAO this is particularly important, because an order can only be made with the consent of the adults who are named in the order. As part of securing the adults’ informed consent to the making of an order, they should be provided with a copy of the Cafcass case plan which would be implemented if a FAO were to be made.
2.6 Before a court makes a FAO in accordance with the terms of the September 2007 FAO Practice Direction (annexed at the end of this guidance) it will seek the opinion of the Cafcass officer about whether an order is in the best interests of the relevant child/ren and if so, about the way in which it should operate and its duration.
3.0 Casework during a Family Assistance Order
3.1 In all cases, a FAO will be allocated to a Family Court Adviser who will act as case manager. The case manager may carry out some of the work under the FAO him or herself, or it may be carried out by a Family Support Worker (FSW) or by another agency.
3.2 When providing services to a family under a FAO the following practices are to be followed: If any new concerns emerge during a FAO which gives cause to suspect that the child is at risk of harm, it must be brought to the attention of the case manager immediately. The case manager must ensure that Cafcass’ response to these new concerns accords with the Cafcass Safeguarding Framework. During the course of the FAO, it is good practice for the case manager or FSW periodically to review progress towards meeting the goals set out in the case plan. The goals should then be revised or added to as necessary. The case plan should set out the nature of the interventions to be carried out by Cafcass and other agencies, including their frequency, duration and the locations where the interventions are to take place.
3.3 Cafcass may arrange for services under the FAO to be provided by an external agency or agencies. A decision to refer a case to another agency for additional services will be taken by the case manager. The case manager or FSW may need to Family Assistance Order Guidance Full implementation by March 2011 Page 4 of 5 call a multi-agency meeting to identify how the range of services will be delivered and to clarify the role of Cafcass and other agencies in coordinating and reviewing the delivery of services. Everyone named in the FAO should also be invited to the multiagency meeting.
3.4 The case manager or FSW should ensure that the child, everyone named in the FAO and other professionals involved are aware of the exact terms of the FAO, exactly what work the court wants to take place under it, and of the steps the court wants the case manager to take. The case manager or FSW should also make sure that those named in the order are clear about the circumstances which may cause the case to be referred back to the court. For example, the case manager may need to report to court on progress (or lack of progress) or seek a further order or an extension to the current order.
4.0 The conclusion of a Family Assistance Order
4.1 As the order approaches its end date, the practitioner should arrange a final review with the family to review what has been achieved and to identify what should be reported back to the court (if required by the terms of the FAO), what ongoing needs remain and how these might best be met, including through referral to another agency. Owner Policy Issued March 2011 Version
2.0 Family Assistance Order Guidance Full implementation by March 2011 Page 5 of 5 Next Review September 2012
Annex 1 Practice Direction 3rd September 2007
Family Assistance Orders Consultation
1. This Practice Direction applies to any family proceedings in the High Court, a county court or a magistrates’ court in which the court is considering whether to make a family assistance order under section 16 of the Children Act 1989, as amended (“the 1989 Act”). It has effect from 1st October 2007.
2. Before making a family assistance order the court must have obtained the opinion of the appropriate officer about whether it would be in the best interests of the child in question for a family assistance order to be made and, if so, how the family assistance order could operate and for what period.
3. The appropriate officer will be an officer of the Service, a Welsh family proceedings officer or an officer of a local authority, depending on the category of officer the court proposes to require to be made available under the family assistance order.
4. The opinion of the appropriate officer may be given orally or in writing (for example, it may form part of a report under section 7 of the 1989 Act).
5. Before making a family assistance order the court must give any person whom it proposes be named in the order an opportunity to comment upon any opinion given by the appropriate officer.
6. Issued by the President of the Family Division, as the nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor. The Right Honourable Sir Mark Potter President of the Family Division and Head of Family Justice September 2007
Sometimes situations will arise in your family life which make legal intervention necessary. This can range from preventing your ex from taking your children out of the country, to setting out who has the right to live in the family home after divorce or separation.
There are several Court Orders and Injunctions available which our Family Solicitors can apply for to help you achieve a more secure future for you and your family. Our Family Solicitors can advise what Court Order or Injunction are suitable for your situation, and can apply to the Court for a Court Order on your behalf.
To help you understand the options available, we’ve outlined 7 of the most common Family Court Orders and Injunctions available in in England and Wales:
Specific Issue Order
A Specific Issue Order is a type of Court Order that is used when people with Parental Responsibility for a child disagree on a particular matter, such as what a child’s surname should be after divorce.
As someone with Parental Responsibility, you are allowed to have a say on a child’s upbringing. If those with Parental Responsibility have opposing views on a certain subject, a Specific Issue Order can be applied for. The Court will then consider what is in the child’s best interests and make the decision about that particular issue on your behalf.
For example, a Specific Issue Order may deal with:
How a child should be educated
What medical treatment a child should receive
A child’s religious upbringing
Whether a child can be taken outside of England & Wales
Changing a child’s name or surname.
Prohibited Steps Order
A Prohibited Steps Order is a type of Court Order that prevents someone from exercising their powers of Parental Responsibility, meaning they can’t do things like remove a child from the country.
People with Parental Responsibility have a right to make decisions about a child’s upbringing. But if others with Parental Responsibility disagree with another parent’s actions (or proposed actions) and want to stop it happening, a Prohibited Steps Order can be applied for. If successful, this will remove that individual’s right to act.
For example, a Prohibited Steps Order may:
Prevent a parent from taking a child out of the country
Prevent a parent from changing a child’s surname
Prevent a parent from relocating with a child
Prevent the child from receiving certain medical treatment.
See how we’ve helped clients with a Prohibited Steps Order:
Child Arrangements Order
A Child Arrangements Order used to be known as a Residence Order. This Court Order sets out the living arrangements for a child or children, including which parent the child/children will live with for the majority of the time.
A Child Arrangements Order will be needed if it cannot be decided with whom a child should live. In these cases the Court will make a decision based on what is in the child’s best interest. The parent with whom the child lives for most of the time is known as the ‘Resident Parent’, and he/she is responsible for making day-to-day decisions about the child’s upbringing.
For example, a Child Arrangements Order can deal with:
Which parent the child will live with
How much time the child will spend with the other parent (if any)
When a child will spend time with the other parent
Whether contact with the other parent should be supervised.
Occupation and shared care Orders
An Occupation Order is a type of Court Injunction. It can be used to control who lives in the family home. It can also restrict a particular person from entering the area surrounding the family home.
Occupation Orders are often used alongside Non Molestation Orders. They help people who want to remain in the family home, but who are scared to do so because of the threat of domestic violence.
With an Occupation Order, you can prevent a violent ex-partner from being in the property or coming near it – even if he/she is on the Tenancy Agreement or the mortgage.
Following a separation, many parents apply to Court for a child arrangements order to formally set out the living arrangements for the child/children, known as a shared care order. Any person including a parent, grandparent, guardian or any other person may apply for an order in this way, as long as they have what is known as ‘parental responsibility’ for the child (or children).
The process can be fairly lengthy and involve a number of hearings, depending upon how willing the parties to the application are to resolve matters themselves. If ultimately they are unable to agree and a Judge or Bench of Magistrates is required to decide how the child arrangements should be managed, they will do so at what is called a final hearing
Once their decision is made, the Court may frame the order in one of two ways. It could state that the child will live with one parent and ‘spend time with’ the other, or it could state that the care of the child is ‘shared’ between the parents. Either way, the order will clearly set out exactly which days the child spends where.
Whenever a Court is asked to make any decision in relation to children, the children’s welfare is its paramount concern. Under section 1(3) of the Children Act 1989, the Court has a checklist of factors to consider when deciding what is in the child’s best interest, including but not limited to:
The wishes and feelings of the child;
The child’s needs; the likely effect on the child of any change in circumstances;
And any harm that the child has suffered or is at risk of suffering and how capable each of the parents are of meeting the child’s needs.
Presuming that the child wants to see both parents, that they are not likely to suffer any harm and both parents are equally capable of meeting their needs, in principle, there should be no reason why a shared care order would not be appropriate. An order that, in its wording, clearly states that the parents share the care of the child will often impact how the parents perceive themselves – they have been formally recognised as equal carers and so the parents may feel that this emboldens their roles as neither one of them is the ‘better’ or ‘preferred’ parent.
Until recently, a shared care order was somewhat rare and thought only to be made in exceptional circumstances. The Court considered that a child should have a settled home with one of his/her parents. Now, however, there is no need for exceptional circumstances, and a shared care order can be made as long as it is in the best interests of the children. It does not need to be limited to cases where the children spend equal amounts of time with each parent and can be granted no matter what the division of time is. Therefore, even if the child or children spend 6 days per week with one parent and just one day with the other, those parents could still have an order expressing that the child’s care is shared between the two of them.
But what is the practical effect of having one of these orders? Other than the fact that a shared care order highlights the importance of both parents providing an equally important level of care, it also has some implications on the care of the children.
One of those implications is that, where a child arrangements order says that the child is to ‘live with’ parent number 1 and ‘spend time with’ parent number 2, parent number 1 is automatically able to take the child out of the UK, for periods of less than one month, without parent number 2’s consent. By contrast, where a shared care order is in force, written consent is required from every person who has parental responsibility whenever one person wishes to take the child out of the UK. So, for shared care orders, neither parent can take the child out of the UK for any period of time whatsoever unless the other parent agreed to it (or they obtained leave from the Court).
As a result, a ‘lives with’ order puts the parents on unequal footing – one needs to seek consent each time they wish to take the child out of the UK for less than one month, and the other does not – this somewhat undermines the second parent’s role and importance. Often, however, the Court will add a direction into these orders to the effect that authorisation is always given, so, if relations between the parents are really bad and one will not agree to the other taking the children away, there is no need for repeated applications to Court each time. This also goes towards levelling the playing field with regard to the imbalance that ‘lives with’ and ‘spends time with’ orders imply onto the perceived roles of the parents.
Overall, shared care orders can be hugely beneficial, symbolically, in the eyes of both parents and the children who are subject to them. The law clearly recognises this as it already moved in the right direction in 2014 when the Children and Families Act replaced what was previously known as ‘residence and contact’ orders with child arrangement orders. The former would name a ‘resident’ parent and a parent who had ‘contact’, therefore implying that only one parent should have the responsibility of the children’s home being with them. Simply calling them child arrangements orders made a huge difference.
Further, a shared care order goes even further to assist with the perception of both parents having equal importance in the upbringing of their children. This symbolism may seem minor and inconsequential where Court directions can remove any automatic, unwanted effects of a ‘lives with’ order, however, being seen as equal on paper could make a big difference to parents. For example, where a father feels that he is less important than the mother due to the traditional societal view of men’s roles as money-makers, not carers.
Maintenance Orders
A Maintenance Order is a Court Order that states how much Spousal Maintenance someone must pay their ex following divorce. This is different to Child Maintenance, which is dealt with separately.
The Court may order Spousal Maintenance is paid if one person earns significantly less than the other, and needs additional money to ensure their needs are taken care of. Sometimes this happens where one person has given up work during the marriage in order to care for the children, meaning that when the relationship breaks down, he/she has very little money or career prospects of their own.
It is possible to arrange child maintenance payments through the court. This is done, in England and Wales, by way of a ‘consent order.’ A consent order is an official ruing of the court that orders the non-resident parent to pay an agreed amount of child support to the resident parent. If you and your ex partner cannot agree on the amount that should be paid, a consent order is not the right option for you.
Consent orders
for child support payments are almost always ordered at the same time as the parties are in court for another reason, e.g. a divorce or in ancillary relief proceedings. If you are not eligible for legal aid, you will have to pay for the consent order yourself (court fees, solicitors fees etc.) It is also important to note that if you are normally eligible for legal aid, you will not be covered for a consent order if you are only going to court to deal with child maintenance issues.