What is the ‘No Order Principle’?
A judge must not make an order concerning a child if they consider that to do so would be better for the child than to make no order. This is found in Section 1(5) of the Children Act 1989. This provision does not create a presumption one way or another. The court must simply ask whether it will be better for the child to make the order than make no order at all. This is called the ‘no order principle’.
The child’s welfare is the court’s paramount consideration when making any order under the Children Act 1989. The principle is intended to discourage unnecessary orders being made. It also promotes parental cooperation without the need for the court’s intervention.
How does the ‘No Order Principle’ apply?
The court may consider it unnecessary for there to be an order if the parents have reached an amicable agreement. The majority of separating couples choose not to obtain a court order concerning their children for this reason.
Sometimes the court considers it necessary for a court order to be made, even if the parents have reached an agreement. This may be to give security to the arrangements by enshrining them in an order.
Examples of the ‘No Order Principle’
In Re S (A Minor) (Contact: grandparents) the court at first instance had declined to make an order for contact between a child and their grandparent. However, on appeal the court found that it was in the child’s best interests to have contact with the grandparent. The judge thought that given the history of antagonism between the parties, the contact order should be made. This is despite there being an agreement between the parties at the time of the hearing.
In H (Mother) v C (Father) and another, the court was concerned with an application by a mother for permission to take her children aged 15 and 17 to live permanently out of the country. The court found that in the case of the older child, it was positively better for the court to make no order about him as he was too old to be directed by the court.
If no order is made, this should be recorded as an order as this still ranks as a decision and the reasons for it should therefore be given.
Please contact us if you would like to informally discuss a child related legal issue on the telephone, or organise a consultation with one of our children lawyers. We can advise whether the ‘no order principle’ will apply to you and your children.
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