Navigating the Children Act: Ensuring the Best Interests of Your Child

The Children Act 1989 

The Children Act 1989 (“the Act”) came into force in England and Wales in October 1991 and introduced far reaching changes in the law relating to children.  

Although lay people continue to speak in terms of “custody” and “access”, when discussing the arrangements for children, following separation and divorce, these concepts have not existed in English Law since the Act came into force.  It is important for separating parents to understand the principles and concepts introduced by the Children Act so that they can reach appropriate agreements regarding the arrangements.  Our expert children lawyers can help you with this.  

No Order principle

Prior to the Act coming into force, the person initiating the divorce proceedings was required to send to the court a Statement of Arrangements for Children Form setting out the proposed arrangements for the children, along with the Divorce Petition, in every case involving children.

When considering whether the parties were entitled to a Decree Nisi, the judge would also consider the arrangements for the children and decide whether it was appropriate to issue a certificate that s/he was satisfied with the arrangements. Very often the judge would make an order as to which party was to have “custody”, “care and control” and “access” in respect of the children.

Following the implementation of the Act the emphasis completely changed. There is no longer any need for the parties to supply the court with any information concerning the children when applying for a divorce. 

The emphasis is now on the parents reaching their own agreements with regard to the children.

The Act includes a “No Order Principle” which means that the court will not make an order about a child unless, it considers that doing so would be better for the child than making no order at all. Therefore, in the vast majority of divorce cases these days, the court does not make any order about the children.

However, if the parties are not able to reach agreement, one of them may make a separate application to the court for an appropriate order.

Welfare Principle

The Children Act makes it clear that when a Court determines any question with regards to the upbringing of a child the child’s welfare will be the court’s paramount consideration.  The act sets out those issues to which a court can have particular regard when considering such an application which are :-

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); 
2. his physical, emotional and educational needs; 
3. the likely effect on him of any change in his circumstances; 
4. his age, sex, background and any characteristics of his which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering; 
6. 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; 
7. the range of powers available to the court under the Children Act. 

Applications Under Section 8 of the Children Act 

The most common applications made under the Children Act are for Child Arrangements Orders.  This means orders regarding with whom a child is to live, spend time or otherwise have contact with, and when a child is to live, spend time or otherwise have contact with any person. These replace the old concepts of “custody” and “access”.

The Court also has the power to make a Prohibited Steps Order, which is an order preventing a parent from taking a particular step with regard to a child and a “Specific Issue Order” which is an order giving directions for the purpose of determining a specific question which has arisen in connection with the upbringing of a child.  

Parental Responsibility 

Parental Responsibility is a concept which was introduced by the Children Act.  It 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”. 

If a child’s father and mother were married to each other at the time of the child’s birth, they will each have Parental Responsibility for the child.  

If the father and mother were not married to each other at the time of the child’s birth, the mother will have Parental Responsibility for the child and the father will have Parental Responsibility if he has acquired it.  An unmarried father can acquire Parental Responsibility in the following circumstances :-

• if he goes along with the child’s mother to register the birth and is registered as the child’s father.
• if he and the child’s mother enter into a Parental Responsibility Agreement. 
• if the court makes an order that he shall have Parental Responsibility for the child. 

Our services

Our specialist family lawyers are able to provide you with support when you are discussing arrangements for the children with your former partner. If necessary, we may help you with the preparation of a Parenting Plan.

We can also help with referrals to mediation and applications to the Court.

Please don’t hesitate to contact a member of our family team if you would like to discuss whether we are able to assist.