No ‘no order principle’

In re G (children) (residence: making of order) CA TLR 14 September

Section 1 of the Children Act 1989 provides: ‘(5) where the Court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order … unless it considers that doing so would be better for the child than making no order at all.’ This provision does not create a presumption one way or the other. It merely demands of the court that it asks itself the question whether to make an order would be better for a child than making no order at all. After protracted and difficult negotiations relating to parental responsibility, residence and contact, the parties had reached agreement. The district judge, supported on appeal by the circuit judge, had said that the court was not there to rubber-stamp parties’ agreements but it was wrong to say that where the parties have reached agreement, s1(5) raises a presumption against making an order. Each case will be different, but here it was overwhelmingly clear that to make a residence order will be better for these children and their future stability. It would give the mother the security of knowing that if her worst fears concerning the father should materialise, then the police and Social Services would know where the children should be living. The district judge and the circuit judge had been wrong in refusing to make a residence order.