ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
3.3 Other Matters Decisions on Upbringing
alienation when they make “welfare recom - mendations” during their Section 7 report; • ordering a “fact-finding hearing” so that find - ings of fact can be made on the issue; • powers under FPR 16.4 to make a child a party to proceedings – when this happens, a guardian is appointed who will give the court an independent view of proceedings from the child’s perspective and will instruct a solicitor to represent the child. If, at a final hearing, the court makes serious findings of parental alienation, it can – in extreme cases – order a transfer of residence so that a child is removed from the alienating parent. Children’s Evidence Section 96(2) of the CA 1989 provides that the unsworn evidence of a child may be heard by a court in civil proceedings if, in the court’s opin - ion, the child understands that it is their duty to speak the truth and they have sufficient under - standing to justify their evidence being heard – even though, in the court’s opinion, they cannot understand the nature of an oath. The CA 1989 does not, therefore, impose a mini - mum age for children to give evidence. Further, the case of Re W (2010) UKSC 12 held that there is no presumption against a child giving evidence in court. Whether a child should give evidence will depend on the circumstances of the case and, in particular, whether the giving of evidence will be contrary to the child’s welfare. The Family Court may order that the child’s wish - es and feelings are in written form, where oral evidence is deemed inappropriate. 3.4 ADR See 2.9 Alternative Dispute Resolution (ADR) .
Decisions on schooling, medical treatment, reli - gion and holidays require the consent of both parents as they involve the exercise of parental responsibility. In circumstances where there is a disagreement, the involvement of the court is necessary. Where parties apply for the court to adjudicate on such disputes, the application is called a “specific issue” application and is made on Form C100. Where a parent is concerned that the other parent is going to make a decision with - out their consent that involves the exercise of parental responsibility (eg, changing the child’s school), an application to court can be made to prohibit this from happening. This is called a “prohibited steps” application and is also made on Form C100. Parental Alienation “Parental alienation” is not a term that is defined in law. The Family Court focuses on the behav - iour of the parents and the impact of that behav - iour on the children involved. Parental alienation is becoming an increasingly contentious topic in the Family Court. In the case of Re S (Parental Alienation: Cult) (2020) EWCA 568, Peter Jackson LJ stated that there is an obligation on the court to respond with “exceptional diligence and take whatever effective measures are available”. Any decision the court will take will be guided by Section 1(3) of the CA 1989. The court has significant case management powers, including: • directing the Cafcass officer (a registered social worker who makes welfare recom - mendations to the court during children proceedings) to consider the issue of parental
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