The Children Act 1989 (“CA 1989”)
The CA 1989 is a cardinal piece of legislation in England and Wales, which outlines the framework for child protection and welfare services. The Act crystallises that a child’s welfare shall always be the Court’s primary and paramount consideration.
Under Section 8 of the CA 1989, the Court has the power to make several different orders (which deal with child arrangements and other orders available within private law family disputes) to facilitate the resolution of disagreements between individuals involved with a child.
Curiously, however, court orders are rarely made or continued for those over the age of 16 years. This in part relates to the ‘No Order Principle’ (Section 1(5) CA 1989) and the fact that the law assumes that children aged 16 or over will “vote with their feet” and make their own decisions about contact and their living arrangements. Indeed, reflective of this approach and pursuant to Sections 9(6) and 9(6B) of the CA 1989, aside from Section 8 orders with a ‘lives with’ provision, it is said that “no court shall make a Section 8 order which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional”. Similarly, under Section 9(7) of the CA 1989, “no court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional”.
In other words, unless the Court is satisfied that the circumstances of a case are ‘exceptional’, a court cannot make a Section 8 order in relation to a child (unless by way of variation or discharge of an order) who has reached the age of 16 years.
What are considered ‘exceptional’ circumstances?
‘Exceptional’ circumstances appear typically to relate to a child’s cognitive or learning difficulties, maturity, or need for additional safeguards. However, as the CA 1989 does not define what constitutes ‘exceptional’, one must look to various case law for such examples and guidance.
A v A and others [2004] EWHC 142 (Fam) depicts an example of Section 9(6) being used to extend Section 8 orders until the age of 18 years.
This case involved two children aged 11 years and 9 years, who, for a period of more than six years, had been the subject of hostile and lengthy Children Act litigation; such litigation described by the children’s Guardian as ‘a virtual state of war…’. It was said that the parents’ failure to work together meant that on any disagreement, however slight, their established reaction was an application to the court (consequently also creating the need for Section 91(14) orders – i.e. an order barring individuals from making further specified applications under the CA 1989).
In these proceedings, the Judge (Mr Justice Wall) rejected a request for a “lives with” order in favour of a shared residence order (where the children would live with each parent for equal time), believing that such an order removed “any impression that one parent is good and responsible and the other is not” and would assist in a case that involved a high level of conflict between the parents.
Then in extending the said Section 8 order in line with Section 9(6), the Judge said: “Exceptional is, of course, an elastic word, but I do not think I am stretching it too far in making the order sought in this case. Once again, it is part of the same message. This is the regime which is to last until the children attain their respective majorities. It is now up to Mr and Mrs A to exercise their parental responsibility responsibly.”
More recently, the ‘exceptional’ categorisation was considered beyond the standard scope of additional needs in the case of Re T (a child) (s 9(6) Children Act 1989 orders: exceptional circumstances: parental alienation) [2024] EWHC 59 (Fam). In this case, the Judge (Mrs Justice Arbuthnot) was asked to consider whether parental alienation was ‘exceptional’ circumstances sufficient to support a Section 8 order subsisting until the child’s 18th birthday.
The Judge concluded that parental alienation may fall into the definition of ‘exceptional’, but the overriding factor was the wishes and feelings of the child, who was 15 at the time and who had expressed that he did not wish to spend time with his father. The Court found that it would be wrong to ignore the child’s strong wishes and feelings, notwithstanding the fact that those wishes and feelings were, it was found, influenced by the manipulation of the mother, who displayed alienating behaviours. Indeed, the Judge remarked that the mother was “determined to ensure that the father has no relationship with their children”.
In this case, although recognising that it may have been an ‘exceptional’ case, considering the boy’s wishes and feelings, the Judge found that an extended order would be pointless and that it would be inappropriate to ignore his firm views. That said, the Judge did make an order up until the boy’s 16th birthday to ensure that some contact with his father continued until that time.
More recently again, in the case of M v F & Anor [2024] EWFC 219 (B), the Judge (HHJ Suh) made a Child Arrangements Order (“CAO”) to last until the child was 18 years of age.
The case considered the mother’s application and primarily concerned a boy who was 17 years of age at the time of the judgment. Proceedings had been ongoing for three years and initially concerned this child and his sister. However, after some time in proceedings and in January 2024, the court considered that the ‘No Order Principle’ applied in respect of the sister, after she had expressed that she did not wish to see her father.
The proceedings therefore were extended in relation to the boy only, who (with his sister) the parties agreed should remain living with the mother.
The child in question had cerebral palsy, which caused him to suffer from both physical and communicative issues; such issues, particularly his intimate personal care needs and need to communicate via a device known as VOCA, causing problems in him independently forming a relationship with his father. Within the proceedings, the child had also expressed that he did not wish to be ordered to spend time with his father.
The first obstacle that the court had to overcome was whether the boy had the capacity to make decisions in respect of contact with his father. Upon a consideration of the information provided by various professionals, the court determined that the boy did have capacity to express his wishes and feelings. Thereafter, the court’s main concern was to ensure the promotion of the
boy’s relationship with his father, which had been previously hindered by the child’s physical limitations. As a result, any success of a relationship with his father relied upon the mother, as the boy’s main carer, listening to the boy’s requests and making him available for contact.
At court, the parties reached a consensus that:
· The boy did not want to be ordered to spend time with his father; and
· The court should make an order requiring the mother to make the boy available for contact in accordance with his wishes and feelings.
In its review of the case, the court viewed the mother as being “wholly negative” about the father and expressed concerns as to whether she would positively foster the child’s relationship with him and promote their contact. Given the child’s additional needs, the mother’s commitment to enabling contact was important.
In combination with the above, the Judge expressed further concerns about whether the boy’s wishes and feelings had been heard. The court therefore emphasised that the success of any order would rely on both parents exercising their Parental Responsibility (“PR”) sensibly to give the boy the best chance to develop a relationship with his father.
Ultimately, the judge ordered that the mother would make the child available for contact in line with his wishes and feelings, lasting until he was 18 years of age. In this case, the court proceeded on the basis that the child was a vulnerable child with additional needs, who required more time for his relationship with his father to develop. Such was considered an ‘exceptional’ circumstance.
Closing thoughts
In short, Sections 9(6) and Section 9(7) of the CA 1989 may be used when a child’s cognitive or learning difficulties, maturity, development, or need for additional protection require it.
The above said, and as shown in Re T, as children get older and their wishes and feelings become clear, it appears that the use of the above sections become less apparent.
As to the decision of M v F & Anor, this is an example of Section 8 orders being made to reinforce the court’s expectation of parents to exercise their PR in line with the wishes and feelings of children beyond the age of 16 with additional needs, who require support to ensure that their future contact with their non-resident parent may be successful.
In summary, while the CA 1989 continues to offer important protections and support for young people, its scope becomes more limited once a child reaches the age of 16 years. Courts are increasingly guided by the principle that older children have greater autonomy and decision-making capacity, meaning that certain orders (particularly Section 8 orders) are less likely to be granted unless there are exceptional circumstances. Therefore, any such application involving a young person aged 16 or over must be carefully considered in light of their wishes, welfare and the court’s reduced jurisdiction.
