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The Children Act 1989
Associated pages: Parental Responsibility
Availability of the statute text
The intention behind the Children Act 1989 (The Act) was to update and then consolidate all the various laws governing children that had been developed piecemeal over the years. The following link will provide you with the text of the Children Act 1989 which came into force in October 1991. Over the following 22 years various significant pieces of legislation affecting the Children Act 1989 have been passed; for example the Adoption and Children Act 2002 (affecting parental responsibility), the Children and Adoption Act 2006 (addressing enforcement of contact and family assistance orders). These statutes resulted in quite significant sections being inserted and removed from The Act so that the Children Act 1989 in order that it remains the core piece of legislation. Commercial publishers produce consolidated, bang up-to-date copies of The Act but the best that can be had by those who find the cost of purchasing these prohibitive can be found on the government statute law database website which currently has The Act containing all the amendments up to the end of 2006. Quite a few commercial texts contain the up-to-date consolidated version of the Children Act 1989 and possibly the best source will be the annually updated Herschman & McFarlane Children Act Handbook 2010/11 (listed alphabetically under ‘H’ for Herschman) from Jordan Publishing which also contains other basic references such as the Family Proceedings Rules 1991 (FPR1991), the set of Rules which govern The Act.
Private law and public law
The majority of the text of the Children Act 1989 addresses ‘public law’ scenarios in which local authorities’ obligations towards children are set out. The ‘private law’ element of the legislation, dealing with children who live with their parent(s) rather than under the care of a local authority, constitutes a smaller part of The Act but is the part that principally concerns our members. A private law case between parents may become a ‘public law’ case if the judge directs a local authority to investigate and report because it is though that the child’s situation may warrant the making of a supervision or care order.
General Principles underlying The Act
- - The child’s welfare is the paramount consideration, s1(1). Fairness between the adults has to take second place (as does everything else) to what is considered to be in the child’s best interest.
- Delay in deterining ‘the question’ is presumed to prejudice the welfare of the child, s1(2). The ponderous nature of the family justice system doesn’t sit easily with this principle. Almost inevitably there will be long delays in any application. · The ‘Welfare Checklist’, s1(3). A list of seven factors that the court ‘shall have regard’ to when making an order. Those preparing reports for the courts and judges themselves will often explicitly review matters, by examining each of the headings under this list. Be sure to be familiar with it. · The ‘No Order’ principle, s1(5). The court should consider whether making ‘no order’ on an application might be the preferred outcome. After a period of little regard for this principle the present emphasis on in-court conciliation and dispute resolution, as a result of the ‘Private Law Programme’ guidance of 2004, has meant that an increasing number of applications are ending up with ‘no order’ being made. · Parental responsibility: this was one of the basic principles introduced, that parents will have equal and enduring parental responsibility for their child before and after separation. In 1989 parental responsibility was regarded as a cornerstone of The Act, but over the years, as the power of the ‘residence order’ has grown, its importance has been diluted. Parental responsibility is dealt with comprehensively on the separate Parental Responsibility page on our website.
- Delay in deterining ‘the question’ is presumed to prejudice the welfare of the child, s1(2). The ponderous nature of the family justice system doesn’t sit easily with this principle. Almost inevitably there will be long delays in any application.
· The ‘Welfare Checklist’, s1(3). A list of seven factors that the court ‘shall have regard’ to when making an order. Those preparing reports for the courts and judges themselves will often explicitly review matters, by examining each of the headings under this list. Be sure to be familiar with it.
· The ‘No Order’ principle, s1(5). The court should consider whether making ‘no order’ on an application might be the preferred outcome. After a period of little regard for this principle the present emphasis on in-court conciliation and dispute resolution, as a result of the ‘Private Law Programme’ guidance of 2004, has meant that an increasing number of applications are ending up with ‘no order’ being made.
· Parental responsibility: this was one of the basic principles introduced, that parents will have equal and enduring parental responsibility for their child before and after separation. In 1989 parental responsibility was regarded as a cornerstone of The Act, but over the years, as the power of the ‘residence order’ has grown, its importance has been diluted. Parental responsibility is dealt with comprehensively on the separate Parental Responsibility page on our website.
Section 8 orders
These are the orders that our members tend to apply for – residence and contact orders mostly. They are referred to as s8 orders as they are listed under Section 8 of The Act. There are 4 types of s8 orders:
· Contact orders
· Residence orders
· Specific issues orders
· Prohibited steps orders
In the words of The Act: “a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
Contact orders made by the court are tailored to individual circumstances. They can be brief and expressed in very general terms: e.g. the mother will allow the father ‘reasonable contact’ to the child. They can be very detailed, explicitly stating collection and return times, locations for handover, who can be present at handover, arrangements for replacement contact if contact doesn’t take place, dates of holiday contact etc – with the actual definition perhaps stretching even to a couple of pages. This, the inclusion of prescriptive details, tends to happen after previous orders, made in less detail, have proved to be unworkable since the court will initially prefer the parents themselves to agree and sort out the detail within the general boundaries set out by the court.
Within contact orders certain descriptions may be used: ‘Direct contact’ refers to face-to-face contact with the child, actually meeting your child, whereas ‘indirect contact’ means that contact takes places by phone, email or post. ‘Visiting contact’ describes a situation in which a child has direct contact with the parent on outings or visiting the parent’s home, but does not stay overnight. When the child sleeps overnight on a contact visit this is referred to as ‘staying contact’.
In the words of The Act: “a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live;
The use of the singular term ‘person’ in the above definition can be read in the plural (“persons”) just as the term “child” also covers “children” in The Act.. Any doubts about this are dispelled by s11(4) which specifically states: “Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned.” There is no explicit ‘shared residence order’ under the legislation, simply the ability to order (under s8) that the child shall live with the individuals named for the times specified in the order (s11(4)). See further material elsewhere on this website specifically dealing with shared residence.
If there is no dispute as to which parent the child shall live then logically, taking into account the ‘no order principle’, a residence order is not required and should not be made. However, even though a contact order, by definition (see above), actually confirms which parent the child lives with, courts are far too easily persuaded by mothers that they need a residence order to ‘reassure’ them that the child lives with them and not the father – especially when contact to the father is substantially increased. Besides giving the mother the increased formal status of ‘resident parent’ a residence order also permits that parent to remove the child from the UK for a month without the need to obtain the other parent’s (parent with parental responsibility) written permission [s13(1)(b)]. Where there is a residence order in force there is also an explicit prohibition on causing the child to be known by a new surname.
Prohibited steps orders
In the words of The Act: ” ‘a prohibited steps order’ means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.” A parent can be prohibited from taking any number of steps, though the most common scenario is where one parent, suspecting that the other may be planning to move abroad with the child, applies for an order that s/he be ‘prohibited from removing the child from the jurisdiction’. Others examples could be: prohibiting the parent from allowing the child to: have body/ear piercings; her hair cut (when with either parent); take part in dangerous activities; do glamour modelling; be fed food contrary to religious beliefs; etc
Specific issues orders
In the words of The Act: “a ‘specific issue order’ means 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.” These orders are ‘positive’ orders in that they require a parent to do or allow something rather than ‘prohibit’ a certain act . A common example is where the court is asked to determine which school a child shall attend. Other examples could be: determining that a child should be circumcised; that the child should be take part in certain religious practices; that a child should be entered for entrance exams; etc
Neither prohibited steps orders (PSO), nor specific issue orders (SIO) are to be used to achieve a result which could be achieved by a contact or residence order [s9(5)(a)]. For example, rather than use a PSO to prevent the child visiting the home of an undesirable adult during contact, the conditions attached to a contact order should deal with this if required.
Family Assistance Orders
Family Assistance Orders (FAOs) as per s16 of The Act provided a means whereby the court could order a welfare officer to ‘advise, assist and befriend’ any person named in the order. Nowadays it is generally agreed that this provision has been underused, partly because the Children Act 1989 required that for these orders to be made the ‘circumstances of the case must be exceptional’. Following consultation, the Children and Adoption Act 2006 [s6] sought to ‘beef up’ these orders. The requirement that the case be exceptional has been removed and they can now run for 12 months rather than 6 months. Additional clauses inserted into s16 of The Act specifically refer to the officer giving advice and assistance as regards establishing, improving and maintaining contact, indicating the potential for a more proactive, ongoing involvement for Cafcass officers, helping with contact following a court order – instead of simply providing a report for the court and hen withdrawing . Inexplicably, despite judicial recommendation, the amendments brought by the 2006 legislation, failed to remove the requirement that all the persons named in the order must consent to it being made. This means that a mother who is hostile to contact, who doesn’t want contact established, improved or maintained, can veto the making of a family assistance order.
Interplay between Divorce and The Children Act 1989
The primary legislation governing divorce is the Matrimonial Causes Act 1973. The MCA1973 almost exclusively limits itself to the marital positions and financial affairs of the husband and wife. Though, for a divorce to be made absolute the court must consider under s41 of the Act ‘the arrangements for the children’ following the divorce, this is almost always a formality since the stated arrangements will almost inevitably be regarded as reasonable. The divorce court does have the authority to ‘exercise its powers under the Children Act 1989’ if ‘there are exceptional circumstances that make it desirable …’ but it will almost never do so.
Understandably, some fathers are misled, since they anticipate that their filed response to the effect that they disagree with the petitioner’s ‘statement of arrangements for the children’ (as set out by the mother in her divorce petition), will result in them having an opportunity to challenge the mother and then they will have the divorce court decide the issue of residence or contact. Even if the mother is preventing the children from having any contact with the father at all, some fathers still fail to issue Children Act 1989 proceedings and believe that the divorce court will address the problem. Where there is a dispute between the parents over which parent the children will live with following the divorce it is even more important that Children Act 1989 proceedings are started early in divorce proceedings, since the division of the matrimonial assets by the divorce court, particularly with regard to the family home, should be dependent upon the parents’ needs to provide for the children who are to live with them.
The Family Proceedings Rules 1991 (FPR1991)
The following link will provide you with the original version of the FPR1991 that applied when the Children Act 1989 came into force in October 2001. Part IV of the FPR1991 which addresses ‘Proceedings under the Children Act 1989’, are an important annexe to that legislation. The ‘Rules’ were made and are updated by statutory instrument rather than primary legislation. There are no up-to-date, ‘as amended’, freely available versions of the FPR1991 online. Those involved in litigation, particularly those representing themselves, could do no worse than to purchase a copy of the annually updated Herschman & McFarlane Children Act Handbook 2008/09 (listed alphabetically under ‘H’ for Herschman) from Jordan publishers which contains the Family Proceedings Rules 1991 alongside an up-to-date version of the Children Act 1989 and other useful documents.
Updated 3 June 2008