What is a Specific Issue Order?
A Specific Issue Order is an Order made by the Court that determines a particular question in connection to a child, which relates to an aspect of parental responsibility for that child. Such a dispute generally arises where two or more people with parental responsibility for that child cannot agree on a particular issue. Specific Issue Orders often relate to the child’s upbringing in some way and can be made, for example, in order to resolve the question of where the child should go to school, whether they should have a particular form of medical treatment, whether their name should be changed, whether they should have any religious education, or whether permission should be granted for them to relocate.
Parental responsibility is defined in law as “… all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Having parental responsibility means that you have the right to be informed and consulted about major decisions relating to a child, such as educational and medical decisions involving them. Where two or more people share parental responsibility certain decisions need to be agreed between them, such as the decision to take the child abroad. Having parental responsibility does not, however, entitle that person to interfere with day-to-day decisions or give any automatic rights in relation to issues such as contact or the child’s living arrangements.
The child’s birth mother will automatically have parental responsibility for a child. The child’s father will automatically have parental responsibility if they are married to the child’ mother or if the child was born after 1 December 2003 and they are named on the child’s birth certificate. There are circumstances where someone other than the child’s biological parents will have parental responsibility for a child, such as by way of a Parental Responsibility Agreement, Parental Responsibility Order or Child Arrangements Order. This can include a step-parent, relative or same sex partner. Further information regarding this can be found in the blog ‘Step-Parents and Parental Responsibility’.
As with most matters relating to children, the best approach is usually to communicate with the other parent in order to discuss and agree on the matter at hand. This kind of collaboration not only benefits the child but also sets a precedent for handling future issues amicably. In addition to the advantages to the child of such a collaborative approach to parenting, agreeing matters in this way will be far less costly and stressful than having to resolve matters by way of an application to the Court. Whilst some parents may be able to discuss matters directly whether by telephone, in person or email, the relationship of other parents may make such communication challenging. In such circumstances engaging with either a family consultant, an independent social worker and/or a mediator may be of considerable assistance in enabling the parents to resolve the issue by agreement. Even where face to face contact is not appropriate, it may be possible to seek to resolve such matters via shuttle mediation, whereby the parties are in different rooms and the mediator essentially shuttles between the parties to enable discussions/negotiations without the parties having to meet directly. Further information regarding mediation together with other forms of Non-Court Dispute Resolution can be found in the blog ‘Dispute Resolution – what is it and what are my options’. There are some circumstances, however, where the parents are unable to agree the matter in issue, or where the matter is so important and pressing that an urgent application to Court is required.
A Specific Issue Order can be applied for without the Court’s permission by a child’s parents, any step-parents who have parental responsibility, guardians, special guardians or anyone who the child is stated as living with in a child arrangements order. Anyone else would require the Court’s permission to make an application for a Specific Issue Order.
As referred to above, before making an application for a Specific Issue Order all reasonable steps should be taken to try to resolve the issue by agreement. It is a requirement for the Applicant to attend a Mediation Information and Assessment Meeting (MIAM) before making an application unless one of the exemptions applies. A MIAM is a brief informative meeting with a trained mediator who provides information about the benefits of the mediation process and other forms of non-court dispute resolution, which can assist in resolving the issue without the need for court proceedings. If both parties agree then a MIAM can be attended together. Alternatively, separate meetings may take place. Changes were introduced in April 2024 to try to strongly encourage the resolution of matters via Non-Court Dispute Resolution (NCDR) and to ensure that court proceedings are only issued in circumstances where no other option would be appropriate. Further information can be found regarding the recent changes in the blog ‘Changes to the Family Procedure Rules: What separating couples need to know before applying to court’.
Whilst changes have been introduced to discourage Court applications and to promote methods of Non-Court Dispute Resolution, there is an acceptance that certain matters do need addressing urgently. Therefore an urgent application to the Court will be appropriate in some circumstances without the delay that may be involved in attending a MIAM and exploring forms of Non-Court Dispute Resolution. Alternatively, it may be that Non-Court Dispute Resolution is simply not appropriate in the circumstances of the case, or that it has been tried and has been unsuccessful. With this in mind, exemptions that can be relied on for the purpose of issuing an urgent application include, but are not limited to the following factors:
There will be some cases that involve an application for a Specific Issue Order where one or more of the above apply making it appropriate to make an application to the Court.
An application is made on a specific court form, known as a Form C100. Where there is considered to be a risk of harm to one of the parties or the child then a supplemental Form C1A should also be completed. These court forms provide for full details to be given in relation to the respective parties and children in the case, as well as information relating to the Order being sought and the reason for it. If an urgent hearing is requested, details of the urgency will need to be provided for the Court to consider. Any risk of harm to the parties or children will also need to be set out.
Whilst it is possible to make an application on a ‘without notice’ basis whereby an Order is sought urgently without the other party being notified, circumstances where this is appropriate are very rare. More often, even if the matter needs urgent consideration, notice of the hearing (even if it short) should be provided to the other party to enable them to attend and be represented if desired.
The first hearing at Court following such an application is commonly known as the First Hearing Dispute Resolution Appointment (FHDRA). At this hearing the Court will investigate what the issues between the parties are, and whether there is any possibility of settling matters by agreement. If matters cannot be settled, the Court will then make directions as to what further information or evidence is needed and how the matter should proceed. Depending on the issues and any risk of harm, the Court may order that CAFCASS (the Children and Families Court Advisory and Support Service) investigate the issues and prepare a report setting out recommendations to assist the Judge at the Final Hearing.
The second hearing, which would usually take place after any CAFCASS report has been filed, will usually be what is commonly known as a Dispute Resolution Appointment (DRA). This hearing can be used as a final hearing if an agreement can be reached between the parties so the matter can be concluded. If an agreement cannot be reached then the Court will generally list the matter for a Final Hearing where the Judge will hear evidence from the parties, the CAFCASS officer if appropriate and any other experts directed, before determining the case by way of a Final Order.
Whilst the above provides the general procedure, Court proceedings should be timetabled so that the issues can be resolved as soon and safely as possible in the best interests of the child. The Court may therefore seek to expedite the process where appropriate and may reduce the number of hearings required. As the Courts are currently being overwhelmed by the amount of cases being issued it is not always possible for matters to be listed as swiftly as they should be.
In all cases, the Court’s paramount consideration in deciding any questions concerning a child’s upbringing is the welfare of the child. In determining what Order should be made, the Court will consider the following factors (known as “the Welfare Checklist”):-
In considering what Order to make the Court must also be satisfied that making an Order is better for the child than not making an Order at all.
Whilst this article will hopefully provide a useful summary regarding Specific Issue Orders, such matters can often be quite complex and there may well be a need to take urgent steps. Therefore if you need tailored advice regarding such a matter then please get in touch with us to arrange a consultation with one of our specialist family lawyers.
Craig Yeung-Williams is an Associate at our Brighton Office.