The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act. In Scotland the Children (Scotland) Act 1995 applies.
Existing UK Legislation
In chronological order:
- Matrimonial Causes Act 1973 , law concerning the division of matrimonial assets during divorce
- Children Act 1989
- Children (Scotland) Act 1995[legislation.gov.uk/ukpga/1995/36/contents]
- Family Law Act 1996 which affects children aged over 17
- Protection of Children Act 1999
- Criminal Justice and Court Services Act 2000 - Section 12 covers Children and Family Court Advisory and Support Service (CAFCASS)
- Adoption and Children Act 2002
Proposed new UK legislation
Residence versus contact
Residence in English law and contact are defined by the Children Act 1989. They relate to the status of the parents.
The act applied to all children under the age of 18.
The Children Act prefers no Residence Order. But generally a (sole) Residence Order is granted to one parent. The courts usually prefer to maintain the status quo ante but it depends on individual circumstances.
A Shared Residence Order means that parents are equal in the eyes of the law, in the eyes of the other parent and in the eyes of the children. It means the children live equally with each parent (though it does not necessarily mean an equal split of time spent with each parent) where the parent with residence is the parent that the child is with at the time.
In D v D (Shared Residence Order)  1 FLR 495 , there was a sole order with Contact to the father. The children spent some 140 days each year with their father, which he calculated was 38% of their time. The father claimed to have experienced difficulties with schools and the hospital in obtaining information and to have felt like a second-class parent. There was some evidence that the mother might be using the Sole Order as a weapon against her husband. The Children Act 1989 was based on the Law Commission's Working Paper No 96, published in 1986, on Custody, and the Law Commission's Report, Law Com No 172, published in 1988, on Guardianship and Custody. The legislative intention was that each parent with parental responsibility should retain their equal and independent right, and their responsibility, to have information and make appropriate decisions about their children. If the parents were not living together it may be necessary for the court to make orders about their future, but those orders should deal with the practical arrangements for where and how the children should be living rather than assigning rights as between the parents. A key feature was that when children are being looked after by either parent, that parent needs to be in a position to take the decisions that have to be taken while the parent is having their care; that is part of care and part of responsibility. Parents should not be seeking to interfere with one another in matters which are taking place while they do not have the care of the children. They cannot take decisions which are incompatible with a court order about the children. The object of the exercise should be to maintain flexible and practical arrangements wherever possible. On the facts, the arrangements have been settled for some considerable time and the children had homes with both of their parents. It was therefore entirely reasonable for the court's Order to reflect the reality of these children's lives and neither party should feel that they have won or lost as a result. For some other appeal cases see Family law system in England & Wales.
- 1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part):-
- (a) to safeguard and promote the welfare of children within their area who are in need; and
- (b) so far as is consistent with that duty, to promote the upbringing of such children by their families - by providing a range and level of services appropriate to those children's needs.
- (2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
- (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
- (4) The Secretary of State may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there.
- (5) Every local authority:-
- (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23 or 24; and
- (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
- (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
- (7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).
- (8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
- (9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support or family credit under the Social Security Act 1986.
- (10) For the purposes of this Part a child shall be taken to be in need if:-
- (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
- (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
- (c) he is disabled - and 'family', in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
- (11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part:
- 'development' means physical, intellectual, emotional, social or behavioural development; and 'health' means physical or mental health.