orders but without the same legal effects.409
3.104In making a section 8 order, the court may:
(a)include directions about how it is to be carried into effect;
(b)impose conditions that must be complied with by any person:
(i)in whose favour the order is made;
(ii)who is a parent or otherwise has parental responsibility for the child; or
(iii)with whom the child is living,
(c)specify the period for which the order, or any provisions in it, is to have effect, or
(d)make such incidental, supplemental or consequential provisions as it thinks fit.410
3.105The power to give directions is principally designed for the court to ensure a smooth transition in those cases in which it orders a change in the existing arrangements.411 It may be used to ensure that there is a delay before the child’s residence is changed or to define more precisely what contact is to take place under a contact order.
3.106The power to attach conditions and other incidental or supplemental provisions enables the court to resolve particular disputes or direct how such a dispute is to be dealt with in the future. Brophy points out that, though the Law Commission recommended conditions be attached to residence or contact orders in difficult cases, this was not intended to give the parent the right to be consulted in advance on all important decisions which the other parent will have to put into effect.412 The exercise of this power is a more practical and realistic way of dealing with a problem than was the former “split” order of giving custody to one parent and care and control to the other. It does not allocate “rights” for the future.413 One of the conditions that may be attached to a residence or contact order is that decisions may not be taken without informing the other person or giving him a right to object.
3.107The power to specify the period for which the order, or any provision in it, is to have effect is intended to preserve the more flexible position under the Matrimonial Causes Act 1973, in which no rigid distinction was drawn between “interim” and “final” orders.414 In fact, the Act makes it clear that the court may make a section 8 order at any time during the course of the proceedings even though it is not in a position to dispose finally of those proceedings.415 There is therefore no longer any distinction between interim and final orders.
409 Law Com No 172, paragraph 4.19.
410 Section 11(7).
411 Law Com No 172, paragraph 4.22.
412 Brophy, “Custody law, Child care and inequality in Britain”, Smart and Sevenhuijsen (ed), in Child Custody and the Politics of Gender, 225, 240 (1989).
413 Ibid at paragraph 4.23.
414 Ibid at paragraph 4.24.
415 Section 11(3).