All those involved with children need to understand the new law, and parents who are caught up in litigation particularly may need advice and help during the early stages of implementation of the Act. This article takes a look at some of the basic principles behind the Act and examines four of the new orders most likely to be of interest to divorcing and unmarried parents.
Books (with the text of the Act)
Children: The New Law - The Children Act by Andrew Bainham, published by Family Law.
A guide to the Children Act 1989 by Richard White, Paul Carr and Nigel Lowe, published by Butterworths.
An Introduction to the Children Act
The Care of Children - Principles and Practice in Regulations and Guidance.
The Children Act 1989 - Guidance and Regulations: Volume 1 - Court Orders
Parental responsibility lies with the mother and father of a child if married to each other at the time of birth (or conception). Parental responsibility is retrospectively assigned to parents who were divorced prior to the Act coming into force, provided there is an existing order in respect of the child [Section 6 of Schedule 14]. If the parents are unmarried, the mother alone has parental responsibility unless the natural father acquires it by agreement or court order.
These orders may be applied for or may be made by the court of its own volition in prescribed conditions. When the court is considering whether to make, vary or discharge one of these orders, and the making, variation or discharge of the order is opposed by any party to the proceedings, the court must have regard to the welfare checklist.
A "Residence Order" is an order settling the arrangements to be made as to the person(s) with whom the child is to live.
The residence order replaces the present custody order but differs in certain important respects, firstly because it is more flexible and will be able to accommodate various shared care arrangements, and secondly because residence and parental respon sibility are regarded as quite separate concepts. The intention is that both parents should feel that they have a continuing role to play in relation to their children. The making of a residence order in favour of one parent does not take away parental responsibility from the other.
A residence order may be made in favour of more than one person at the same time even though they do not live together, in which case the order may specify the periods during which the child is to live in the different households concerned (section 11(4)). A shared residence order could therefore be made where the child is to spend, for example, weekdays with one parent and weekends with the other, or term time with one parent and school holidays with the other, or where the child is to spend large amounts of time with each parent.
A shared care order has the advantage of being more realistic in those cases where the child is to spend considerable amounts of time with both parents, brings with it certain other benefits and removes any impression that one parent is good and responsible and the other parent is not.
A "Contact Order" is an order requiring the person with whom the 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 to have contact with each other.
Unlike the present access order, which normally provides for a parent to have access to a child, the new contact order provides for the child to visit or stay with the person named in the order. The emphasis has thus shifted from the adult to the child. The new order may provide for the child to have contact with any person, not just a parent, and more than one contact order may be made in respect of a child.
'Contact' may range from long or short visits to contact by letter, telephone, tapes, parcels etc. It is anticipated that the usual order will be for reasonable contact, although the court will be able to attach conditions or make directions under section 11(7) where necessary.
It should be noted that a contact order is a positive order in the sense that it requires contact to be allowed between an individual and a child and cannot be used to deny contact.
Prohibited Steps Orders
A "Prohibited Steps Order" is an order that a specified step which could be taken by a parent in meeting his parental responsibilities for a child, and which is of a kind specified in the order, shall not be taken by any person without the consent of the court.
Both prohibited steps orders and specific issue orders (see below) are concerned with 'single issues' and are modelled on the wardship jurisdiction. The purpose of the prohibited steps order, however, is to impose a specific restriction on the exercise of parental responsibility instead of the vague requirement in wardship that no 'important step' be taken in respect of the child without the court's consent. It could, for example, be used to prohibit the child's removal from the country.
A prohibited steps order may be made against anyone but can only prohibit a step which could be taken by a parent meeting his parental responsibility for the child. It could not therefore be used, for example, to restrict publicity about a child since this is not within the scope of parental responsibility.
Specific Issue Orders
A "Specific Issue Order" is an order giving directions for the purpose of determining a specific question which has arisen, or may arise, in connection with any aspect of parental responsibility for a child.
Specific issue orders may be made in connection with residence or contact orders, or on their own. The aim, however, is not to give one parent or the other a general 'right' to make decisions about a particular aspect of the child's upbringing, for example his education or medical treatment, but rather to enable a particular dispute over such a manner to be resolved by the court, including the giving of detailed directions where necessary.
Henry Hodgins & David Cannon
Issue 4 - October 1991