I do not have entitlement, does that mean I cannot apply?
Where a person does not have an automatic entitlement to apply for an order under section 8 of the Children Act then they must first apply for ‘leave of the Court’ ie the Court’s permission to make the application. The application for permission will be made on form C2 and will be sent to the Court at the same time as the C100 which is the application for the main order being sought.
Under section 10(8) a child can apply for permission to make an application for a section 8 order but the Court can only grant permission where it is satisfied that the child has sufficient understanding of the proceedings and what is being applied for.
Section 10(9) of the Children Act 1989 states that when the Court is deciding whether or not to grant permission it has to consider :-
(a) the nature of the proposed application for the section 8 order – ie is the type of order being sought appropriate in the circumstances;
(b) the applicant’s connection with the child;
(c) any risk there might be of the proposed application disrupting the child’s life to such an extent that the child would be harmed by it – any change to a child’s life will cause some disruption, the question for the Court is whether the disruption will be such that it would not be in the child’s best interest to make the order that the applicant is seeking
(d) where the child is being looked after by the local authority (ie in the care of the local authority) the Court will need to consider (i) the local authority’s plans for the child’s future; and (ii) the wishes and feelings of the child’s parents
When an application for leave is made, the Court will list the matter for an initial directions appointment to consider whether permission should be granted and will hear the views of all the parties to the application. If permission is not granted, that is the end to the application. If permission is granted, the normal procedure for dealing with an application for a section 8 order will be implemented.
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