two children run through fallen autumn leaves in woodland

In the continuation of our Private Family Law series, this article looks at how the Children Act 1989 applies to arrangements for children within private family court proceedings.

What is the Children Act 1989?

The Children Act remains the bedrock of the legislation and law as it applies to arrangements for children within private law proceedings.

The Children Act is broken up into effectively four separate parts inclusive of preliminary sections which deal with the need for instigation of proceedings, parental responsibility (see later article), public law proceedings (that is local authority applications for Care Orders etc.).

Schedules which address financial issues for children (i.e. the provision of a property for a child whilst a minor) and more particularly which is of relevance to this series of articles at section 8 (see later article) which sets out primarily the orders and provisions that can be made within private law children proceedings.

The Children Act is now so engrained and understood by both courts and legal practitioners that it is surprising looking back how ground-breaking and controversial at times the provision of the Children Act was.

What changes did it bring about?

The Children Act swept away all the previous legislation and arrangements that were in place in terms of dealing with children and replaced them with new and ground-breaking provisions. For example, it completely did away with the concepts of custody, lived with orders and access (see previous article – Private Family Law – child custody and access myths) and introduced the concepts of parental responsibility, residence, and contact (see later article).

It did away with the need within divorce proceedings for courts to have to make determinations about custody, live with and access. It placed the emphasis on parents being able to resolve matters and agree arrangements for the children themselves and Section 1 of the Children Act specifically confirms that the court should not make any orders in relation to children unless they are necessary.

Why was it controversial?

One of the most controversial aspects of the Children Act was the introduction of “parental responsibility” (see later article) which provided the legal rights and duties regarding decision making of children to the parents.

The “conservative” press in particular seemed to be outraged by the concept that an unmarried father should automatically receive parental responsibility in the same way that a married father would as it was argued it effectively undermined the importance and sanctity of marriage.

Consequently, when first enacted the Children Act provided that a mother would automatically receive parental responsibility but that there were conditions applied to whether a father did. This included them being married to the mother at the time the child was born or subsequently but otherwise not unless either:

  1. It was provided to him by way of a Court Order; or
  2. Parental responsibility was granted by both parents completing relevant registration forms.

This had the impact in one sad case that I dealt with where the mother in a cohabiting relationship had died leaving the father with his three natural children and not only did he have to deal with the impact and effect of his long-term partner’s death he also had to make an application to the court to secure parental responsibility for his children in order to make appropriate legal decisions for and on their behalf.

How has the Children Act 1989 changed since it was first implemented?

Over the course of subsequent years, varying alternative Acts and amendments have been made to the Children Act which have substantially changed the above position. Particularly in 2003 by Act of Parliament it was identified that a father married or unmarried if named on the child’s birth certificate would hold parental responsibility. Therefore, the number of cases where fathers named on the birth certificate do not have parental responsibility for children has substantially diminished to the point that such a long time has now past you can assume that if a father is named on the child’s birth certificate, he holds parental responsibility for that child.

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Private Family Law series

The next article in the series will address Do I need to apply to the court for an order? For more information on Private Family Court Proceedings and Misconceptions, please read these articles: