www.askthefamilylawyer.co.uk - logo
September 13, 2007

Children Act 1989 sections 1 to 14

1 Welfare of the child

(1) When a court determines any question with respect to ?

(a )the upbringing of a child; or

(b) the administration of a child?s property or the application of any income arising from it,
the child?s welfare shall be the court?s paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to ?

?(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.

(4) The circumstances are that ?

(a)?the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

?

?

2 Parental responsibility for children

(1) Where a child?s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

(2) Where a child?s father and mother were not married to each other at the time of his birth ?

(a) the mother shall have parental responsibility for the child;

(b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.

(3) References in this Act to a child whose father and mother were, or (as the case may be) were not, married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning).

(4) The rule of law that a father is the natural guardian of his legitimate child is abolished.

(5) More than one person may have parental responsibility for the same child at the same time.

(6) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child.

(7) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

(8) The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act.

(9) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.

(10) The person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned.

(11) The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child concerned.
3 Meaning of ?parental responsibility?

(1) 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.

(2) It also includes the rights, powers and duties which a guardian of the child?s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.

(3) The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover.

(4) The fact that a person has, or does not have, parental responsibility for a child shall not affect ?

(a) any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or

(b) any rights which, in the event of the child?s death, he (or any other person) may have in relation to the child?s property.

(5) A person who ?

(a) does not have parental responsibility for a particular child; but

(b) has care of the child,
may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child?s welfare.

4 Acquisition of parental responsibility by father

(1) Where a child?s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if ?

(a) he becomes registered as the child?s father under any of the enactments specified in subsection (1A);

(b) he and the child?s mother make an agreement (a ?parental responsibility agreement?) providing for him to have parental responsibility for the child; or

(b)?the court, on his application, orders that he shall have parental responsibility for the child.
(c)?
(1A) The enactments referred to in subsection (1)(a) are ?

(a) paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953;

(b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and

(d)?sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976.

(1B) The Secretary of State may by order amend subsection (1A) so as to add further enactments to the list in that subsection.

(2) No parental responsibility agreement shall have effect for the purposes of this Act unless ?

(a) it is made in the form prescribed by regulations made by the Lord Chancellor; and

(b) where regulations are made by the Lord Chancellor prescribing the manner in which such agreements must be recorded, it is recorded in the prescribed manner.

(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

(3) The court may make an order under subsection (2A) on the application ?

(a) of any person who has parental responsibility for the child; or

(b) with leave of the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).

(4) The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.

4A Acquisition of parental responsibility by step-parent
(1) Where a child?s parent (?parent A?) who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child?s parent (?the step-parent?) ?

(a) parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or

(b) the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.
(2) An agreement under subsection (1)(a) is also a ?parental responsibility agreement?, and section 4(2) applies in relation to such agreements as it applies in relation to parental responsibility agreements under section 4.

(3) A parental responsibility agreement under subsection (1)(a), or an order under subsection (1)(b), may only be brought to an end by an order of the court made on the application ?

(a) of any person who has parental responsibility for the child; or

(b) with the leave of the court, of the child himself.

(4) The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
5 Appointment of guardians

(1) Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child?s guardian or special guardian if ?

(a) the child has no parent with parental responsibility for him; or

(b) a residence order has been made with respect to the child in favour of a parent, guardian or special guardian of his who has died while the order was in force; or

(c) paragraph (b) does not apply, and the child?s only or last surviving special guardian dies.

(2) The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.

(3) A parent who has parental responsibility for his child may appoint another individual to be the child?s guardian in the event of his death.

(4) A guardian of a child may appoint another individual to take his place as the child?s guardian in the event of his death; and a special guardian of a child may appoint another individual to be the child?s guardian in the event of his death.

(5) An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or ?

(a) in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or

(b) in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.

(6) A person appointed as a child?s guardian under this section shall have parental responsibility for the child concerned.

(7) Where ?

(a) on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or

(b) immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child or he was the child?s only (or last surviving) special guardian,
the appointment shall take effect on the death of that person.

(8) Where, on the death of any person making an appointment under subsection (3) or (4) ?

(a) the child concerned has a parent with parental responsibility for him; and

(b) subsection (7)(b) does not apply,
the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.

(9) Subsections (1) and (7) do not apply if the residence order referred to in paragraph (b) of those subsections was also made in favour of a surviving parent of the child.

(10) Nothing in this section shall be taken to prevent an appointment under subsection (3) or (4) being made by two or more persons acting jointly.

(11) Subject to any provision made by rules of court, no court shall exercise the High Court?s inherent jurisdiction to appoint a guardian of the estate of any child.

(12) Where the rules of court are made under subsection (11) they may prescribe the circumstances in which, and conditions subject to which, an appointment of such a guardian may be made.

(13) A guardian of a child may only be appointed in accordance with the provisions of this section.
6 Guardians: revocation and disclaimer

(1) An appointment under section 5(3) or (4) revokes an earlier such appointment (including one made in an unrevoked will or codicil) made by the same person in respect of the same child, unless it is clear (whether as the result of an express provision in the later appointment or by any necessary implication) that the purpose of the later appointment is to appoint an additional guardian.
(2) An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person who made the appointment revokes it by a written and dated instrument which is signed ?

(a) by him; or

(b) at his direction, in his presence and in the presence of two witnesses who each attest the signature.

(3) An appointment under section 5(3) or (4) (other than one made in a will or codicil) is revoked if, with the intention of revoking the appointment, the person who made it ?

(a) destroys the instrument by which it was made; or

(b) has some other person destroy that instrument in his presence.

(3A) An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person appointed is the spouse of the person who made the appointment and either ?

(a) a decree of a court of civil jurisdiction in England and Wales dissolves or annuls the marriage, or

(b) the marriage is dissolved or annulled and the divorce or annulment is entitled to recognition in England and Wales by virtue of Part II of the Family Law Act 1986,
unless a contrary intention appears by the appointment.

(3B) An appointment under section 5(3) or (4) (including one made in an unrevoked will or codicil) is revoked if the person appointed is the civil partner of the person who made the appointment and either ?

(a) an order of a court of civil jurisdiction in England and Wales dissolves or annuls the civil partnership, or

(b) the civil partnership is dissolved or annulled and the dissolution or annulment is entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5 of the Civil Partnership Act 2004,
unless a contrary intention appears by the appointment.

(4) For the avoidance of doubt, an appointment under section 5(3) or (4) made in a will or codicil is revoked if the will or codicil is revoked.

(5) A person who is appointed as a guardian under section 5(3) or (4) may disclaim his appointment by an instrument in writing signed by him and made within a reasonable time of his first knowing that the appointment has taken effect.

(6) Where regulations are made by the Lord Chancellor prescribing the manner in which such disclaimers must be recorded, no such disclaimer shall have effect unless it is recorded in the prescribed manner.

(7) Any appointment of a guardian under section 5 may be brought to an end at any time by order of the court ?

(a) on the application of any person who has parental responsibility for the child;

(b) on the application of the child concerned, with leave of the court; or

(c) in any family proceedings, if the court considers that it should be brought to an end even though no application has been made.

?7 Welfare reports?

(1) A court considering any question with respect to a child under this Act may ?

(a) ask an officer of the Service or a Welsh family proceedings officer; or

(b) ask a local authority to arrange for ?
(i) an officer of the authority; or
(ii) such other person (other than an officer of the Service or a Welsh family proceedings officer) as the authority considers appropriate,

to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.

(2) The Lord Chancellor may, after consulting the Lord Chief Justice, make regulations specifying matters which, unless the court orders otherwise, must be dealt with in any report under this section.

(3) The report may be made in writing, or orally, as the court requires.

(4) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of ?

(a) any statement contained in the report; and

(b) any evidence given in respect of the matters referred to in the report,

in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering.
(5) It shall be the duty of the authority or officer of the Service or a Welsh family proceedings officer to comply with any request for a report under this section.

(6) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (2).

PART II
ORDERS WITH RESPECT TO CHILDREN IN FAMILY PROCEEDINGS

8 Residence, contact and other orders with respect to children???????
(1) In this 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;

?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 residence order? means an order settling the arrangements to be made as to the person with whom a child is to live; and

?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.

(2) In this Act ?a section 8 order? means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.

(3) For the purposes of this Act ?family proceedings? means any proceedings ?

(a) under the inherent jurisdiction of the High Court in relation to children; and

(b) under the enactments mentioned in subsection (4),

but does not include proceedings on an application for leave under section 100(3).

(4) The enactments are ?

(a) Parts I, II and IV of this Act;

(b) the Matrimonial Causes Act 1973;

(ba) Schedule 5 to the Civil Partnership Act 2004;

(c) (repealed)

(d) the Adoption Act and Children Act 2002;

(e) the Domestic Proceedings and Magistrates? Courts Act 1978;

(ea) Schedule 6 to the Civil Partnership Act 2004;

(f) (repealed)

(g) Part III of the Matrimonial and Family Proceedings Act 1984;

(h) the Family Law Act 1996.

(i)?sections 11 and 12 of the Crime and Disorder Act 1998.
(ii)?
9 Restrictions on making section 8 orders

(1) No court shall make any section 8 order, other than a residence order, with respect to a child who is in the care of a local authority.

(2) No application may be made by a local authority for a residence order or contact order and no court shall make such an order in favour of a local authority.

(3) A person who is, or was at any time within the last six months, a local authority foster parent of a child may not apply for leave to apply for a section 8 order with respect to the child unless ?

(a) he has the consent of the authority;

(b) he is a relative of the child; or

(c) the child has lived with him for at least one year preceding the application.

(4) (repealed)

(5) No court shall exercise its powers to make a specific issue order or prohibited steps order ?

(a) with a view to achieving a result which could be achieved by making a residence or contact order; or

(b) in any way which is denied to the High Court (by section 100(2)) in the exercise of its inherent jurisdiction with respect to children.

(6) Subject to section 12(5), no court shall make any section 8 order which is to have effect for a period which will end after the child has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.
(7) No court shall make any section 8 order, other than one varying or discharging such an order, with respect to a child who has reached the age of sixteen unless it is satisfied that the circumstances of the case are exceptional.

10 Power of court to make section 8 orders

(1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if ?

(a) an application for the order has been made by a person who ?
(i) is entitled to apply for a section 8 order with respect to the child; or
(ii) has obtained the leave of the court to make the application; or

(b) the court considers that the order should be made even though no such application has been made.

(2) The court may also make a section 8 order with respect to any child on the application of a person who ?

(a) is entitled to apply for a section 8 order with respect to the child; or

(b) has obtained the leave of the court to make the application.

(3) This section is subject to the restrictions imposed by section 9.

(4) The following persons are entitled to apply to the court for any section 8 order with respect to a child ?

(a) any parent, guardian or special guardian of the child;

(aa) any person who by virtue of section 4A has parental responsibility for the child;

(b) any person in whose favour a residence order is in force with respect to the child.

(5) The following persons are entitled to apply for a residence or contact order with respect to a child ?

(a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;

(aa) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

(b) any person with whom the child has lived for a period of at least three years;

(c) any person who ?
(i) in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made;
(ii) in any case where the child is in the care of a local authority, has the consent of that authority; or
(iii)?in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
(iv)?
(5A) A local authority foster parent is entitled to apply for a residence order with respect to a child if the child has lived with him for a period of at least one year immediately preceding the application.

(6) A person who would not otherwise be entitled (under the previous provisions of this section) to apply for the variation or discharge of a section 8 order shall be entitled to do so if ?

(a) the order was made on his application; or

(b) in the case of a contact order, he is named in the order.

(7) Any person who falls within a category of person prescribed by rules of court is entitled to apply for any such section 8 order as may be prescribed in relation to that category of person.

(7A) If a special guardianship order is in force with respect to a child, an application for a residence order may only be made with respect to him, if apart from this subsection the leave of the court is not required, with such leave.

(8) Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order.

(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to ?

(a) the nature of the proposed application for the section 8 order;

(b) the applicant?s connection with the child;

(c) any risk there might be of that proposed application disrupting the child?s life to such an extent that he would be harmed by it; and

(d) where the child is being looked after by a local authority ?
(i) the authority?s plans for the child?s future; and
(ii) the wishes and feelings of the child?s parents.

(10) The period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application.

11 General principles and supplementary provisions

(1) In proceedings in which any question of making a section 8 order, or any other question with respect to such an order, arises, the court shall (in the light of any rules made by virtue of subsection (2)) ?

(a) draw up a timetable with a view to determining the question without delay; and

(b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to.

(2) Rules of court may ?

(a) specify periods within which specified steps must be taken in relation to proceedings in which such questions arise; and

(b) make other provision with respect to such proceedings for the purpose of ensuring, so far as is reasonably practicable, that such questions are determined without delay.

(3) Where a court has power to make a section 8 order, it may do so at any time during the course of the proceedings in question even though it is not in a position to dispose finally of those proceedings.

(4) 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.

(5) Where ?

(a) a residence order has been made with respect to a child; and

(b) as a result of the order the child lives, or is to live, with one of two parents who each have parental responsibility for him,
The residence order shall cease to have effect if the parents live together for a continuous period of more than six months.

(6) A contact order which requires the parent with whom a child lives to allow the child to visit, or otherwise have contact with, his other parent shall cease to have effect if the parents live together for a continuous period of more than six months.

(7) A section 8 order may ?

(a) contain directions about how it is to be carried into effect;

(b) impose conditions which must be complied with by any person ?
(i) in whose favour the order is made;
(ii) who is a parent of the child concerned;
(iii) who is not a parent of his but who has parental responsibility for him; or
(iv) with whom the child is living,

and to whom the conditions are expressed to apply;

(c) be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;

(d) make such incidental, supplemental or consequential provision as the court thinks fit.

12 Residence orders and parental responsibility

(1) Where the court makes a residence order in favour of the father of a child it shall, if the father would not otherwise have parental responsibility for the child, also make an order under section 4 giving him that responsibility.

(2) Where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.

(3) Where a person has parental responsibility for a child as a result of subsection (2), he shall not have the right ?

(a) (repealed)

(b) to agree, or refuse to agree, to the making of an adoption order, or an order under section 84 of the Adoption and Children Act 2002, with respect to the child; or

(c) to appoint a guardian for the child.

(4) Where subsection (1) requires the court to make an order under section 4 in respect of the father of a child, the court shall not bring that order to an end at any time while the residence order concerned remains in force.

(5) The power of a court to make a residence order in favour of any person who is not the parent or guardian of the child concerned includes power to direct, at the request of that person, that the order continue in force until the child reaches the age of eighteen (unless the order is brought to an end earlier); and any power to vary a residence order is exercisable accordingly.

(6) Where a residence order includes such a direction, an application to vary or discharge the order may only be made, if apart from this subsection the leave of the court is not required, with such leave.

13 Change of child?s name or removal from jurisdiction
?
(1) Where a residence order is in force with respect to a child, no person may ?

(a) cause the child to be known by a new surname; or

(b) remove him from the United Kingdom;
without either the written consent of every person who has parental responsibility for the child or the leave of the court.

(2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.

(3) In making a residence order with respect to a child the court may grant the leave required by subsection (1)(b), either generally or for specified purposes.

14 Enforcement of residence orders

(1) Where ?

(a) a residence order is in force with respect to a child in favour of any person; and

(b) any other person (including one in whose favour the order is also in force) is in breach of the arrangements settled by that order,

the person mentioned in paragraph (a) may, as soon as the requirement in subsection (2) is complied with, enforce the order under section 63(3) of the Magistrates? Courts Act 1980 as if it were an order requiring the other person to produce the child to him.

(2) The requirement is that a copy of the residence order has been served on the other person.

(3) Subsection (1) is without prejudice to any other remedy open to the person in whose favour the residence order is in force.

?

No Comments »

No comments yet.

RSS feed for comments on this post. | TrackBack URI
You can also bookmark this on del.icio.us or check the cosmos

Leave a comment

You must be logged in to post a comment.