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Relevant child

3.108The court can make a section 8 order with respect to “any child” about whose welfare a question arises in family proceedings.416  The court may make an order in respect of a child who is not treated by the parties as a child of their family.417

3.109A child is defined as a person under the age of 18.418  However, unless there are exceptional circumstances,419 a section 8 order cannot be made in respect of a child who has reached the age of 16 nor can any order be expressed to have effect beyond a child’s sixteenth birthday.420  An order ceases to have effect when the child reaches the age of 16 unless it is expressed to extend beyond the child’s sixteenth birthday.421  Where the court so directs, the order will cease to have effect when the child reaches the age of 18.422

3.110The English Law Commission explained that 16 is the age at which children may leave school and seek full-time employment and become entitled to certain benefits or allowances in their own right.  The older the child becomes, the less just it is to attempt to enforce against him an order to which he has never been a party.423

Circumstances in which orders may be made

3.111There are three ways in which orders relating to children may be made:

(a)on application in the course of family proceedings,424

(b)on the court’s own motion in the course of family proceedings,425 and

(c)on a free-standing application in the absence of any other proceedings.426

3.112The types of orders which could be made and the persons entitled to apply for them are the same in all family proceedings.  The object is to provide a unified scheme which is consistent and clear so that everyone may know his position.  Wherever possible orders should be made in the course of existing proceedings about the family.  This was designed to avoid wasteful duplication and to ensure that all applications relating to the same child can be dealt with together as far as possible.427

Family proceedings

416 Section 10(1).

417 Whether a child is a “child of the family” is still important for determining whether a person who is not a parent or guardian may seek an order without the leave of the court: s 10(4)(a), (5)(a).

418 Section 105(1).

419 For example, persons over 16 who are immature or who are mentally handicapped.

420 Section 9(6)-(7).

421 Section 91(10).

422 Section 91(11).

423 Law Com No 172, paragraph 3.25.

424 Section 10(1)(a).

425 Section 10(1)(b).

426 Section 10(2).

427 Law Com No 172, paragraph 4.33.

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