Week 2: Introduction to the legislation
Revised outline:
17/2/05: Introduction legal system/human rights/UN
Convention;
24/2/05: Introduction to Children Act;
3/3/05: Child Protection and orders;
10/3/05: Children in need & looked after children;
9th & 16/3/05: Visit to Bristol Crown Court (Wed. am);
17/3/05: no lecture
Easter
14/4/05: Adoption
21/4/05:Youth Justice System;
28/4/05: Youth justice in practice (Blair Keltie & Ian Longshaw, Wiltshire YOT)
5/5/05: Divorce and separation
12/5/05: Court room skills
19/5/05: Exam preparation and round up
26/5/05: No lecture - revision
Legislative and policy context
Children Act 1989
January 2003: Victoria Climbie Inquiry report by Lord laming
September 2003: Every Child Matters, Green Paper
Children Act 2004
Introduction to the Children Act 1989
Children Act 1989 (CA) is a key piece of legislation, both in private law and public law, dealing with responsibilities of individuals and the state towards children and young people in meeting their welfare needs. It was described by Sir Geoffrey Howe in the Parliamentary debate on the Bill as:
"the most comprehensive and far-reaching reform of this branch of the law ever introduced. It meets a long-felt need for a comprehensive and integrated statutory framework to ensure the welfare of children."
In addition to the underlying principles and key messages of the CA, there is one other key feature of this legislation, and that is the aspect referred to by Sir Geoffrey Howe: for the first time it provides a relatively comprehensive and integrated statutory framework to ensure the welfare of children. Before the CA 1989 was implemented, the law relating to the welfare of children was contained in a number of different statutes, and different considerations were brought to bear depending on which statute was in use.
Philosophy of the Act
Ø Best place for a child to be brought up is in their own family
Ø LA should support family to do that
Ø State should only intervention if the ‘threshold criteria’ are met
Main principles
Ø Safeguard and promote the welfare of the child
Ø No delay
Ø Non-intervention or no order
Ø Respect for the child
Ø Partnership
Ø Parental responsibility
Structure of the Children Act 1989
Within the Act, sections are grouped together in different parts, each dealing with a different aspect. You may well hear people refer for example to Part 3 services - this simply refers to those services provided in compliance with Part 3 of the CA.
When the Act came into force there was a large amount of additional guidance produced by the Department of Health, and this has been steadily updated in the light of research and developments in practice. In particular there are 9 volumes of Regulations and Guidance which were published when the CA came into force, each dealing with a different aspect of the Act. The Department of Health also produced a guide called 'An Introduction to The Children Act 1989', which is a useful adjunct to the other set texts.
Part 1
s.1: sets out the 'welfare principle'; the 'no delay' principle; the 'welfare checklist'; and the 'no order' principle. This section applies when a court is involved.
The principles outlined in the section underpin the operation of the whole Act.
The ‘welfare checklist’ is an important element of the Act, setting out a number of things a court will need to consider in making any decisions about an individual child. The factors in it are often referred to even where there are no court proceedings, since they reflect the thinking underlying the Act..
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
Definition of harm
The Adoption and Children Act 2002 contains a provision that clarifies the definition
of harm set out in the Children Act 1989. This makes clear that harm includes any
harm a child may suffer or is at risk of suffering as a result of witnessing the ill
treatment of another person. The Adoption and Children Act 2002 received Royal
Assent on 7 November 2002. When implemented, this new definition will apply
to family proceedings relating to contact and residence applications.
Parental Responsibility
This is a key concept in the Act, so it is useful to look at it at this stage. Prior to the Children Act, we talked about 'parental rights and duties'. The words used in legal documents are very important: whereas we may often in our everyday speech and writing use words in a fairly loose way, in legal documents they have very specific meanings. The decision to describe the legal relationship as 'parental responsibility' rather than parental rights and duties is significant: it indicates a shift in thinking away from the idea that children are possessions over whom parents have rights. Instead we see here a definition, which indicates clearly that those who are looking after children, whether it be their parents or others, have responsibilities towards those children.
The Act first defines who has parental responsibility (s.2) - and then goes on to define what it is (s.3). Finally, it describes how a father can acquire PR (s.4)
Definition:
s.3 (1) CA 89: In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
The ‘rights, duties, responsibilities and authority’ are to be found not in the Children Act, but throughout the remainder of the body of English and Welsh law.
Who has parental responsibility?
The Children Act defines this in s.2
§ Mothers and married fathers (i.e. married to the mother at the time of the child’s birth or subsequently) will always have parental responsibility. They will only lose it if an adoption order is made, but their exercise of their PR may be limited or stopped in some way (for example by an order made under the CA). Note the reference to married fathers - married and unmarried fathers are dealt with differently under the Act, and it is important to be aware of those differences.
§ Non-married fathers who jointly register the birth with the mother from 1 December 2003 onwards will automatically acquire PR (s.111 Adoption and Children Act 2002) (this can be removed from him by court order).
§ Other people can acquire PR:
§ Other non-married fathers can acquire it either by agreement with the mother or by a court order called a 'parental responsibility' order (s.4). The agreement has to be in a special form available from the court. In addition, if a residence order is made in favour of a non-married father, the court will also make a PR order in his favour. A non-married father who acquires PR can only lose it if a court subsequently discharges the order or agreement (s.4(3)).
§ Any other person in whose favour a residence order is made acquires PR for so long as the residence order lasts. PR acquired in this way is lost if the residence order is discharged.
§ Someone appointed as a guardian, on the death of a parent, will have PR
§ Local authorities acquire PR when an emergency protection order or an interim or final care order is made in relation to a child.
§ Several people may have parental responsibility for the same child at the same time. Generally, each person with PR may act independently of the others, but there are some limitations to this:
§ Where a particular piece of legislation requires consent for an action eg consent to adoption
§ Where there is an order in force under the Act, exercise of PR should not be incompatible with the order eg if there is a care order, the mother, although still having PR, should not do anything that will undermine that order.
§ Where anyone other than a non-married father acquires PR as a result of a residence order being made in their favour they cannot:
§ Consent to an application for freeing for adoption
§ Consent to the making of an adoption order
§ Appoint a guardian for the child
§ When a residence order is in force no one can remove the child from the UK for more than a month, nor can they change the child's surname, without either the written consent of everyone with PR or leave of the court.
§ When a care order is in force the local authority can determine the extent to which a parent or guardian may meet their PR for the child, providing that is necessary to safeguard or promote the child's welfare.
Sections 5 and 6 deal with the appointment of guardians where either there is no-one who has PR, or whoever had PR has died.
Section 7 deals enables the courts to order the preparation of welfare reports - we will look at this in the context of private law (section 8) orders.
Part 2
Orders with respect to children in family proceedings – this provides the private law remedies or section 8 orders.
Sections 8 - 14 deal mainly with the section 8 orders.
Part 2 also provides for financial relief for children.
Section 16 allows for family assistance orders.
Section 8 orders
These are the private law orders available to individuals who want the court to resolve disputes between them concerning the exercise of PR.
§ Residence order
This settles the arrangements about where a child should live. You may have heard people talk in the past about 'custody' orders. These were replaced by PR and residence orders. It is possible to have a residence order in favour of more than one person; conditions may be attached to the order. If it is made in favour of someone who is not the child's parent of guardian, a residence order will carry with it PR in their favour, subject to the limitations noted above.
§ Contact order
This is an order requiring the person with whom the child lives to allow the child to visit or stay with the person named in the order, or allow some other sort of contact to take place. You may have heard in the past of an access order: contact replaces the old access order, and is more flexible in the kind of contact enabled. Note that whilst the order can provide for a variety of different types of contact, it is permissive in the sense that it cannot force someone to have contact of any kind with a child against that person's wishes.
Guidance on the Act stated that a contact order is a permissive order, and cannot be used to stop contact taking place. If this is what is required, a different type of order (prohibited steps) should be applied for (Volume 1, Regulations and Guidance).
§ Specific issue order
This enables the court to resolve specific questions or disputes that arise in connection with any aspect of PR for a child eg in a dispute between parents about the education of a child, or religious upbringing, medical treatment.
§ Prohibited steps order
This is an order preventing any person from taking any step in relation to a child which could be taken by a parent in meeting their PR. For example, it can be used to prevent the child's removal from a particular place, or to prevent a change of school, or to stop someone having contact with a child. Note that the order can be made against someone who is not a party to the proceedings.
§ Family Assistance Order
An officer named in the order is to advise, assist and befriend the person named in the order
Who can apply for section 8 orders?
Anyone can apply, but some people are automatically entitled to apply, whilst others have to ask the court's permission ('seek leave of the court') before they may apply.
1. Parents (including unmarried fathers), guardians and people with a residence order may apply for any s.8 order
- The following may apply for a residence or contact order only (they would have to seek leave to apply for any other s.8 order):
§ Step-parents (in relation to their stepchildren)
§ Any person with whom the child has lived for at least three years
§ Any person who has the consent of:
§ (where there is a residence order in force) all those with a residence order in their favour;
§ (where the child is in care) the local authority;
§ (in any other case) all those with PR
3. Those who have to seek leave first are:
§ Children, who can seek leave to make any s.8 application. The court may grant leave only if satisfied that the child has sufficient understanding to make the application.
§ Anyone else not listed above must seek leave to make any s.8 application. When they seek leave the court must consider: