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6.85Section 8 of the Children Act 1989 provides that a contact order allows the child to visit or stay with the other person.  A Scottish contact order is:

“an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living.”735

6.86We considered the English and Scottish definitions of contact orders.  We had some concern with the words “to allow” in the English provision in case it was interpreted by parents to mean that the residential parent exercised some control over access by the non-residential parent to the child.  In contrast, the Scottish section referred to the child’s right to be with the other parent.  The more neutral language of this section was similar to Article 9.3 of the United Nations Convention on the Rights of the Child.

6.87We recommend the adoption of a provision on the lines of the Scottish definition of the contact order.736  We also recommend that this proposed section would provide that the contact parent would have the right to act independently for the day-to-day care of the child when he is exercising contact with the child.

Specific issue order

6.88Section 8(1) of the Children Act 1989 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 Scottish section 11(2)(e) defines it as: “An order regulating any specific question which has arisen, or may arise, in connection with any of the matters mentioned in paragraph (a) to (d) of subsection (1) ....”737

6.89In contrast to the English or Scottish definitions, the Australian “specific issues” order extends to any aspect of parental responsibility other than residence, contact or maintenance.  It may confer “on a person (whether alone or jointly with another person) responsibility for the long-term care, welfare and development of the child or for the day-to-day care, welfare and development of the child”.738  

6.90The English wording gave the court unrestricted discretion to make an order for the welfare of the child.739  We expressed a preference for the English definition to the Scottish definition as it was crisper, and gave considerable leeway and flexibility.  We prefer the term ”specific issues order ” to “specific issue order.”  Accordingly we recommend that a provision on the lines of the English definition of the specific issue order be enacted.

Prohibited steps order

735 Section 11(2)(d) of the Children (Scotland) Act 1995.

736 See Annex 1 infra.

737 These include parental responsibilities, rights, guardianship and the administration of a child’s property.

738 Section 64B(6) of the Family Law Act 1975 as inserted by the Family Law Reform Act 1995.

739 See Annex 1 infra.

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