Children Act 1989
The Children Act 1989 was introduced to provide comprehensive legislation that ensures the developmental needs and welfare requirements of children are met and they are protected from any form of harm.
There are specific principles in the Children Act 1989 which reflect the guidance contained within the UNCRC including respect for a child’s race, culture and ethnicity, protection from harm and the responsibility of parents to bring up children and consider the child’s wishes when decisions are being made that affect them.
Welfare Principles of Children Act 1989
Welfare Principles contained within the Children Act 1989 include a Cardinal principle which means that the welfare of the child should be at the centre of any decision made in relation to the child.
This applies in particular when there has been an issue relating to the child’s upbringing that must be decided by a court using this legislation. This welfare principle does not however apply to every situation which relates to a child. Orders will not be made unless it is in the child’s best interests to do so. Unnecessary delays should also be avoided as far as possible.
There are several key principles contained within The Children’s Act including;
This was introduced to replace the previous concept of custody and it states that parents must be responsible for their children and any decisions regarding education, welfare or other areas of the child’s life should be discussed between both parents. From birth, a mother has an automatic right to parental responsibility. The parental responsibility of the father does depend on several factors;
If the father is married to the mother before or after the birth of the child, he will receive automatic parental responsibility
If the child’s birth was registered on or after the 1st December 2003 and the mother and father registered the birth of the child together, the father has automatic parental responsibility
A father who was not present at the registration of a birth or the child’s birth was registered before 01st December 2003, the mother can agree that the father also has parental responsibility. This is achieved through obtaining a parental responsibility or order which must be awarded by a court.
Child Arrangements Order
As of the 22nd April 2014, contact orders and residence orders were revoked and replaced with what is known as a child arrangements order. This order will specify who the child is to live with and who they spend time with.
Child arrangements order (who a child should live with) – This will clearly state who the child will live with and when. The individual who holds this order is also able to take the child on holiday overseas for a period of no longer than one month unless the court says that they cannot do this.
In some orders, a child may live with both parents. Orders will cease when a child reaches the age of 16 or if both of the biological parents live together for a period of more than six months.
Child arrangements order (who a child spends time with) – The order may require that the individual who the child lives with grants permission for the child to stay or visit a named individual. This order also expires on the child’s 16th birthday.
Prohibited Steps Order
If one of these orders is granted, an individual with parental responsibility cannot take a specific step unless they have permission from the court. This order will prevent certain actions being taken or imposed such as medical procedures without permission from the court.
Specific Issue Order
This order will allow a parent or another person to request that the court allows them to exercise parental responsibility such as making a decision about schooling or medical treatment
The first section of the Children Act 1989 maintains that the welfare of the child should be the main consideration when any decisions are made. When the court is considering a Section 8 Order the court must determine;
- The wishes of the child taking into consideration their age and understanding
- The child’s educational, physical and emotional requirements
- How the change in circumstances will affect the child
- Considerations such as the child’s age or background should be made
- The capability of the parent(s) or the person to which the question applies is able to meet the needs of the child
- What powers the court has under the Children Act to reach a decision
All of the Orders outlined above including Contact Orders, Prohibited Steps Orders, Residence Order and Specific Issue Order are issued under Section 8 of the Children Act
Local Authority The Children Act 1989
The Children Act 1989 places obligations on the local authority and partner agencies as well as parents and the courts to ensure that children are safeguarded and protected from harm and their welfare is promoted. The legislation is based on the principle that children are best cared for by their own families and it outlines key provisions which can be implemented if this doesn’t happen.
Children Act Updates
In 2004 a further Act was introduced that strengthened the legislation from 1989. The newest piece of legislation was implemented to encourage partnership working between agencies and it established greater accountability. The new Act brought in the following changes;
Created an opening for the Children’s Commissioner of England
All local authorities are under a duty to appoint a director of children’s services and an elected lead member for Children’s Services who are personally accountable for service delivery
Local authorities and partner agencies such as healthcare providers, the police and youth justice should fully cooperate in order to promote children’s wellbeing. In addition, arrangements must be in place to promote and safeguard the welfare of children
Specific pieces of legislation were also introduced in relation to physical punishment. The updates restricted the use of a defence on the grounds of ‘reasonable punishment’. This can no longer be used when individuals are charged with a variety of child offences such as actual or grievous bodily harm, cruelty or wounding. If a child receives an injury and it is so serious that it would result in the offender being charged, the offender cannot justify their actions as being a ‘reasonable’ punishment.
The Children Act 1989 and the newest Act from 2004 collectively aim to promote the welfare and safeguard children from harm.
Local Authority support for children and families: Powers and Duties
Section 17 to 20 of the Children’s Act 1989 provides local authorities with the ability to intervene in private family matters when they have reason to believe that an intervention is necessary to safeguard the welfare of children. Throughout England and Wales every local authority is duty bound both legally and morally to provide support and guidance to children living in the local area who may be in need of protection from a third party.
Quite specifically under Section 17(1) the local authority has a general duty to:
- Promote and safeguard the welfare of children in the local area who are clearly in need
- Promote the upbringing of these children by supporting families through a number of services which are suitable to meet the requirements of these in need children
Within each borough it is the duty of the local authority to determine which children are in need and the extent to which they require support. Applying Section 17(1) of the Children’s Act 1989 the local authority would deem the following children as being ‘in need’
The child who is likely to maintain or achieve or have the opportunity of maintaining or achieving an adequate level of development and reasonable standard of health without intervention by the local authority
The child’s health or development would be severely impaired if the local authority did not offer support.
The child is disabled which for the purposes of the legislation would mean deaf, dumb, blind, suffering from a mental condition or another condition that would result in the child being permanently handicapped.
When the local authority has reason to believe that a family require extra support, there are several powers that they can use to provide the necessary support. When the local authority is able to provide care for children in the community, the local authority will have certain duties and powers that they can use. These are contained within the Children’s Act 1989 and fall under the following schedules;
Schedule 2, Part 1, paragraph 4(1) Children’s Act 1989
Children within a local authority who are experiencing neglect or ill treatment should be promptly identified and supported. The local authority is obliged to take all reasonable steps to prevent children from suffering.
Schedule 2, Part 1, Paragraph 7
The local authority is required to take all reasonable care to reduce the need for a care supervision order where practically possible.
Accommodation for children
The local authority must provide suitable accommodation for a child who is in need in the local area. There may be a number of reasons why children may need accommodation including:
- No adult who has parental responsibility over the child
- The child has been abandoned or they are lost
- The individual responsible for their care is no longer able to provide suitable care and accommodation
Children in need must be provided with suitable care and accommodation for a child in need within the local area until they have reached the age of 16, or even if the child is 16 years old if the welfare of the child is likely to be negatively affected if they do not receive the help and support of the local authority.
The local authority has the ability to provide accommodation for any child in their local area, particularly when those with parental responsibility have trouble in providing accommodation for their child. When the local authority does intervene to offer accommodation this often promotes and safeguards the child’s welfare.
However, before the local authority can provide accommodation, the Court will use provisions outlined in Section 20 and the Welfare Principle. Provided that the child can understand the situation, their wishes and feelings will also be taken into consideration.
Section 20 of the Children’s Act 1989 – Voluntary Provisions for Accommodation
The local authority cannot assume or gain parental responsibility over a child in the local area
Under this section, the local authority cannot provide accommodation for a child if the individual with parental responsibility is willing and able to provide accommodation or they can make their own arrangements for the child to be suitably housed
Any individual who holds parental responsibility in a legal capacity for a child may remove the child from accommodation provided by the local authority using Section 20 (8) of the Children’s Act 1989
Section 20(7) of the Children’s Act 1989 cannot be used for a child aged 16 or over who agrees that the local authority can provide them with accommodation.
About the author:
This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.