Prohibited Steps and Specific Issues Orders

A Prohibited Steps Order enables a Court to place a specific prohibition upon the exercise of parent’s parental responsibility. The Order could be used, to prevent removal of the child from the country, removal of the child from his home, or to prevent medical treatment without the consent of the other parent or of the Court. However, where the issue relates to a condition applicable to Residence Order, the proper application is for a Child Arrangements Order, or a variation of an existing Order and not for a Prohibited Steps Order.

A Prohibited Steps Order can also be made against anyone irrespective of whether they have parental responsibility. An Order could, for example, be made against an unmarried father whether or not he has parental responsibility, or against a non-parent. An example of this would be to restrain a former cohabitant from contacting or seeking to have contact with a child.

Specific Issues Orders are made when the Court is asked to decide a particular issue relating to a child’s upbringing on which the parents cannot agree.

Examples are when parents cannot agree on the school their child should go to, whether to change the child’s surname, whether they might leave England and Wales to live in another country or decisions about religion, medical treatment and the like.

A Specific Issue Order application enables a specific question relating to a child to be brought before the Court. Orders may be made either in conjunction with Child Arrangements Orders or on their own. Disputes as to the child’s education, medical treatment or permission to take the children outside the jurisdiction for a holiday, are examples of the type of issues that could be resolved with such an Order, including where necessary, the giving of detailed directions. In the absence of a Residence Order disputes about a child’s surname or first name can also be resolved by means of a Specific Issue or Prohibited Steps Order.

Applications for a Prohibited Steps and Specific Issue Order may be made without notice to the other party although if you are not the child’s parent you may have to ask the Court’s permission first before applying for an Order.

In appropriate cases, what might otherwise be achieved by a Specific Issue Order may be achieved by a Judge’s direction in continuing proceedings. Thus, in M v M a direction was made that a mother permits the father to make the child available for a voice test at a school of the father’s choice. In this way the father’s wish to make an application for a change of school would be facilitated and was in the child’s best interests.

An important limitation both on Prohibited Steps and Specific Issue Orders is that they must concern an aspect of parental responsibility. The Court may not, therefore, make a Prohibited Steps Order forbidding contact between the parents, nor may it make a Specific Issue Order compelling a local authority to provide support services since neither contact between adults not the provision of support services has anything to do with parental responsibility. However, publicity about a child can probably now be restrained by a Prohibited Steps Order.

It has been established that the Court has no power to exclude a parent from the home on an application for a Prohibited Steps or Specific Issues Order.

In Nottingham County Council v P, Sir Stephen Brown said that ‘it is very doubtful indeed whether a Prohibited Steps Order could in any circumstances be used to ‘oust’ a father from the matrimonial home’, and in Pearson v Franklin (Parental Home: Ouster) it was held that a Specific Issue Order (and by implication a Prohibited Steps Order) could not be used to interfere with rights of occupation.

In Re M (Minors) (Disclosure of Evidence), the Court of Appeal took Nottingham to have established that there is no jurisdiction under the Children Act to exclude a parent from the home for the protection of the child and in Re D (Prohibited Steps Order), Ward LJ has clearly stated that there is no jurisdiction to make an ouster Order under the Children Act.

It has also been held that Prohibited Steps Orders cannot be used to prevent one parent assaulting the other, though an injunction can be sought under the appropriate domestic violence legislation as an ancillary action to the CA 1989 application. The Court may also, in any family proceedings, make a non-Molestation Order, of its own motion under s 42(2) (b) of the FLA 1996.

Under s 9(5) of the Children Act 1989, neither a Prohibited Steps nor a Specific Issue Order may be made:

(a)     with a view to achieving a result which could be achieved by a Child Arrangements Order; or    

(b)     in any way which is denied to the High Court (by a s 100(2)) in the exercise of its inherent jurisdiction.

This is to guard against the risk that the Orders might be used to achieve the same practical results as Child Arrangements Orders but without the same legal effects. It is also intended to prevent local authorities from applying for Prohibited Steps or Specific Issue Order as a way of obtaining the care or supervision of a child or an Order that the child be accommodated by them by the back door.

The prescribed form for making an application for either a Prohibited Steps or Specific Issues Order is Form C100. They are both applications under section 8 Children Act 1989 and this is the prescribed form.

A second form – Form C1a – with additional information must be completed and submitted to the Court with your C100 when the children are at risk or have been exposed to violence.

The application forms are not difficult to complete as for now you only need to give basic information. Should your application become contested, then the Court will require you to file further evidence at a later date. The reason for this is so as not to inflame the situation and make early settlement more difficult. The Court will always encourage you and the other parent to come to an agreement yourselves. Arrangements that have been agreed between the parties and not imposed by the Court are far more likely to work successfully and therefore be in the children’s best interest. You will be encouraged by the Court to make use of the mediation service provided by the Court as an aid to agreeing the arrangements.

Where your application is in respect of more than one child, all of the children should be included in the one application. If you are asking for more than one Order (such as Residence and Prohibited Steps) it is only necessary to use the one form.

The Respondent (or Respondents) to your application will be everybody who has parental responsibility for the children. Usually, this will just be the other parent but in special cases it could include a guardian, a local authority or other person who has previously been granted a Residence Order.

You can fill in the form by hand or online. It matters not. Obviously it should be clear and legible and in black ink as it is going to end up being copied possibly scores of times. Remember that this is all about what is best for your child and not about how well you can fill in a form.

If you do not want the Respondent or someone to know your address or telephone number you do not have to put it on the application form. The Court will however need this for service on you of documents and you should complete Form C8 ‘Confidential Address’ and submit it with your application.

You must include details of any other people who live with the children, for example, new partners of a parent, aunts, uncles, and grandparents. You should also tell the Court if the child lives at more than one address. This will help give the Court a complete picture of the child’s living arrangements.

The Court will also need to know if the child is the subject of a child protection plan or known to local authority children’s services. If this is the case, it is probable that the Court will seek further information from the local authority.

Most of the information required is obvious, but here are examples of what you might wish to say in Paragraph 3 which asks for why you are making the Application:

1. (Page 7). Why are you making this application

I am asking the Court to make an Order that my daughter should attend the (name) School. (Name) is slow of learning and would best be taught at a special school appropriate to her learning difficulties.

The Respondent has a shared residence with me but he refuses to accept that the child is educationally disadvantaged, and insists that the child should continue to attend the local school, where she is unable to keep up with her work and falling steadily behind.

(B)      (Page 7). I am seeking permission from the Court to remove the child from England and Wales to live permanently with me in the USA.

On the (date) I was granted a Residence Order in respect of (child’s name) after a contested hearing following the divorce between the Respondent and myself which was made absolute on the (date). At the same hearing the Respondent was granted an Order for contact with the children every weekend.

On the (date) I re-married, and there are now two children of my second marriage aged 2 and 6 months. My husband is a film producer and has just been offered a lucrative contract with the Mega Film Corporation of California for a term of 5 years.

I wish to accompany him to America with my family where there is adequate accommodation and provision for schools and sport for the children. I have undertaken to help and cooperate with arrangements for contact with the Respondent, but the Respondent refuses to consent to this removal.

I am asking the Court for permission to change the Children’s Surname to Smith. The Respondent – the father of all the children – is a man with many criminal convictions, his last conviction being for a much publicised and notorious offence in respect of which he was sentenced to 25 years’ imprisonment. The children have no recollection of him at all, and he has never communicated with them.

I divorced the Respondent on the (date) and since then changed my name by deed poll to Smith. There is an injunction preventing the Respondent from knowing my address or communicating with him.

I want the children to grow up free from any association with the Respondent.

Don’t forget to sign and date the form and it is then ready for issue at Court.

Issuing your Application at Court

Once completed, your Application must be issued at Court with sufficient copies to be served on each Respondent and a copy for CAFCASS. If there is only one Respondent it will therefore be necessary to make 4 copies of the application.

There will be a Court fee to pay unless you are entitled to a fee remission. HM Court services publish a guide to entitlements to fee remissions which can be downloaded. You will not have to pay a Court fee if you are in receipt of a specified means-tested benefit; or your gross annual income does not exceed a specified limit; or you would suffer undue financial hardship.

Your Application should be made to your nearest Family Court. Usually, a case will be heard in the Court for the district where the child lives and although it is not essential to issue in that Court there will be the probability of a transfer with the delays that causes if the application becomes defended.

The Court office will allocate a case number, fix a date time and place for a hearing or directions appointment and then return the application with the hearing date fixed and a response pack for completion by the Respondent to you for service.

It is your responsibility to serve a copy of the application sealed by the Court and notice of the hearing date on the Respondent not less than 14 days before the date fixed for the hearing. Copies must also be served upon every person with parental responsibility and any other parties involved with the child or who has previously been involved in Court proceedings concerning the child.

Send or give the papers to the Respondent. He or she then has 14 days to acknowledge receipt of the application to the Court, who will advise you of what they say and if they intend to oppose the application.

Once an application has been made, it can only be withdrawn with leave of the Court.

The Court will have fixed a date for a hearing (or Directions Appointment) when both you and the Respondent will be required to attend. This has to be as soon as possible, and the Court is required to actively manage the case to avoid delay.

A CAFCASS officer will usually be present at Court when you arrive to encourage you and the Respondent to reach agreement. At some Courts, you and the Respondent will have a meeting with the CAFCASS officer before going to see the Judge and at other Courts the Judge may see you both first and then adjourn for you to meet with the CAFCASS officer.

If agreement is possible, it will usually then be a case of just going before the Judge (or magistrates) with the CAFCASS Officer who will explain matters and what has been agreed. The Court can then be expected to make an Order in the agreed terms. There is however a ‘no Order’ principle under the Children Act and it is possible that the Court will consider that where agreement has been reached there is no need for an Order.

If no agreement is possible, the Court will usually fix a further appointment, set a timetable and give further directions. If appropriate Interim Orders will be made and in most cases a CAFCASS report will be ordered. This will be a report by a CAFCASS officer who will visit and speak to everybody involved with the children and make recommendations to the Court. Unfortunately, it can take at least 3 months for the preparation of the report.

Normal directions include statements being filed by all parties within a specified time limit.

Once the CAFCASS report has been prepared, a Further Directions Appointment will be fixed for a further chance to agree matters based on the report recommendation. If one party does not accept the recommendation, the case will be set down for a final hearing before a Circuit Judge.

The parties must then file bundles of evidence with the Court not less than four days before the hearing date. The bundle should include copies of all documents relevant to the hearing in chronological order in sections.

All parties should attend the hearing with their witnesses and give evidence.

The Court will give its judgement, which must be recorded in writing with the reasons for the decision.