Shared Parenting Information Group (SPIG) UK

- promoting responsible shared parenting after separation and divorce -

The Children Act 1989

The Children Act 1989 came into force on 14 October 1991, making radical changes in the law relating to children and their families. The Act embodies a change in philosophy, moving from the concept of parental rights towards the rights of the child, whilst emphasising co-operation and the sharing of parental responsibilities.

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.

Useful publications

There are a number of excellent publications on the Act; some are academic, others practical. Many of the books contain the entire text of Act as well as a commentary, for little more than the cost of the Act itself.

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.

HMSO publications
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

Basic Principles

The Act contains basic principles which apply to the orders made under it:

Key Issues

The Principles and Practice in Regulations and Guidance, in giving guidance on the way the Act should be implemented, highlights several issues very pertinent to concerned parents: There should be little difficulty in arguing that it is implicit in government literature that these principles should apply to all aspects of the Act.

The Welfare Checklist

To assist the court in the determination of the child's best interests in certain specified circumstances, section 1(3) of the Act provides a checklist which "the court shall have regard in particular to:"

Parental Responsibility

Parental responsibility is a new concept created by the Act. It is defined in Section 3(1) as "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". Third parties such as schools, hospitals and clergymen should now treat a non- residential parent with parental responsibility on an equal footing with the residential parent.

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.

The Court

The Act creates another new concept, "The Court", comprising a special Magistrates Court, County Court and High Court. The new orders available under the Act, with very few exceptions, can be made at any level within "The Court". This means that proceedings may be transferred with greater ease, and that one no longer has to select a particular court for a particular remedy.

Section 8 Orders

There are many new orders, but "Section 8 Orders" are likely to be of particular interest to separated parents. These are orders for: "Residence", "Contact", "Prohibited Steps" and "Specific Issues" and are discussed below.

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.

Residence Orders

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.

Contact Orders

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.


Although wardship will still be an available option in private disputes, the intention is that its use by individuals will be greatly reduced by the introduction of prohibited step and specific issues orders.


There are grounds for cautious optimism about the overall effect of the Act. It will be one of our challenges to make an impact on the way its implementation develops around the country.

Henry Hodgins & David Cannon
Issue 4 - October 1991

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