Rainscourt Family Law Solicitors

What is a specific issue order? Looking at the role of the judicial parent

A specific issue order answers a specific question in relation to a child.

The Children Act defines a specific issue order as an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.  The current draft of the Children and Families Bill, which eliminates the contact and residence order, preserves the role of the specific issue order.

Here is a specific issue which has been recently decided by the High Court:

Should an 11 year old and 15 year old girl be immunised with the MMR vaccine?* 

The judgment helpfully sets out the practical steps that a court may take to reach an answer to a question such as this one:

1. Father’s solicitors writes to the mother in January 2013 seeking her agreement to the girls being vaccinated, failing which it was indicated he would apply to the court;

2. Father issues application in April 2013;

3. Initial directions hearing by the District Judge in April 2013;

4. Further directions hearing in High Court in April 2013 which made provision for the filing of a CAFCASS report setting out the wishes and feelings of the two children;

5.. Further directions given in June 2013 listing the matter for hearing and making directions for the children to discuss this issue with their GP.

6.  The children meet the High Court judge in July 2013 with the CAFCASS officer

7. Final hearing in July 2013, and judgment handed down in September 2013.

The conclusion of the court was that the girls should be immunised, and should receive those injections by 11 October 2013.  Reports in the press indicate that this has not yet happened.

How did the judge reach her decision? The paramount consideration will be the welfare of the child or children.  The judge stated [22]: “It is unfortunate the parents were not able to reach a consensus on this issue; that would have been best for both the children. In the absence of that the responsibility falls on the court to exercise that parental responsibility for the parents having regard to the welfare interests of each child.”

In the recent case of Re G the Court of Appeal was asked to reconsider the question:

Should 5 primary aged children continue to attend their ultra Orthodox religious school, or move to an Orthodox school instead?**

The answer to this question would affect not just the children’s education, but their entire way of life.  The court reminded us that “In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.” It concluded that the judge had been correct to decide that the children should move to the Orthodox establishment on the basis that  “where the decision has been devolved to a ‘judicial parent’.. the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.” The Court of Appeal referred again to the concept of the ‘judicial reasonable parent’, “approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children.”

This role of the court has replaced the role of the father as ultimate decision maker: “Time was when the solution to a case such as this would have been simple. The court would have declined to become involved and deferred to parental authority, that authority being of course exclusively the father’s.” The judicial parent has replaced the father as having ultimate say on identifying and pursuing the best interests of the child, but, as the court was keen to point out, only when invited to do so.

*F v F [2013] EWHC 2683

**Re G [2012] EWCA Civ 1233

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