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Political sociological context
In 1984 the Department of Health published a review which found that the current law relating to children was unsatisfactory, mainly because it had developed on a largely piecemeal basis under successive governments. This caused problems for child care professionals trying to apply the law. In a 1987 White Paper titled ‘The Law of Child Care and Family Services’ the government stated its intention to overhaul the law. In 1988 the Law Commission published a review of the care law titled ‘Review of Child Care Law: Guardianship and Custody’. The report contained a draft Bill which formed the basis of the Children Act 1989.
The government’s aim was to provide a clearer framework for the provision of child care services and for the protection of children. The Act introduced the concept of parental responsibility. It also marks a shift in the emphasis of the law as it states that children have rights of their own and are not just the possessions of their parents. The Act set out a range of orders that courts could use to resolve disputes when relationships between those with responsibility for children break down.
Main changes to the law
Section 1 contains several principles which courts must always take into account. These are: the child’s welfare should be the courts’ paramount concern; any delay in resolving issues is likely to prejudice a child’s welfare; and courts must presume, unless the contrary is shown, that the involvement of parent in child’s life will further the child’s welfare. The section provides a checklist of ‘welfare factors’ courts must take into account, including: the ascertainable wishes of the child; their physical, emotional and educational needs; the likely effect of any change in circumstances; their age, sex, background and any other relevant characteristics; any risk of suffering harm; how capable are those with responsibility for him; and the range of powers available to court under. Section 1(5) states a court should only grant an order if it considers this would be better for the child.
Section 3 defines ‘parental responsibility’ as the rights, duties, powers and responsibilities which a parent has in law. If a child’s parents are married they both have this. However, if they are unmarried, the father does not have it but may acquire it by agreement, registration, or court order. Under s.5 courts can also appoint guardians.
Section 8 gives courts the power to make a range of orders. Contact Orders specify who can have with the child. Child Arrangement Orders specify who the child can live with. Care Orders enable local authorities to remove a child from home and control who can exercise parental responsibility. Supervision Orders allow local authorities to assist, advise or befriend anyone named in the order. Applications for orders must meet the s.31 criteria: the child must be likely to suffer significant harm, either because the current care is not what a reasonable parent would give, or because the child is beyond parental control. However, the child’s religion or surname cannot be changed nor can it be adopted. All applications are subject to the general welfare principles in s.1.
Section 17 imposes a duty on local authorities to safeguard children in need who are unlikely to achieve a reasonable standard of health or development unless services are provided. Under s.20 the authority must provide accommodation for such children in their area if the person caring for them cannot provide suitable accommodation or in order to safeguard their welfare.
Under s.44 any person may apply for an Emergency Protection Order (EPO) to remove the child to safe accommodation or to prevent child being removed from such accommodation. The applicant acquires parental responsibility only to the extent that it is reasonably required to protect the child’s welfare. The Order may direct who the child can have with and may exclude the abuser from the child’s home. An EPO lasts for 8 days, extendable once for up to 7 days.
Under s.46 the police can place a child under police protection for up to 72 hours if they reasonably believe child would otherwise be likely to suffer significant harm. A court order is not required.
Under s.47 local authorities have a duty to investigate children under police protection or who are likely to suffer significant harm.
Under s.49 a person commits an offence if they knowingly and without lawful excuse take a child who is in care or subject to police protection or an EPO away from the responsible person specified by the court, or who incites or assists them to run away. Recovery Orders are available it there is reason to believe a child has been taken away unlawfully, has run away or is missing.
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