This year marks the 30th anniversary of the implementation of the Children Act 1989.
The Children Act 1989 introduced several principles including:
- The child’s welfare “shall be the court’s paramount consideration”.
- Delay in resolving matters is “likely to prejudice the welfare of the child”.
- The court “shall not make any order unless it considers that doing so would be better for the child than making no order at all” – otherwise known as the “No Order” principle.
The 1989 Act did away with the terms such as of ‘custody’ and ‘access’, and replaced them with ‘residence’ and ‘contact’ (and, later, with ‘child arrangements orders’). The Act brought together both private and public children law under the same roof. The courts consider and apply the welfare checklist’ set out in section 1(3) IE the rights of the adults are not significant when looking at the needs of the child concerned.
The courts look at the child’s best interests for now and the future and will look particularly at the emotional needs of a child and not the parent’s desire to spend time with the child. Hence, we still regularly come across parents seeking to enforce their ‘parental rights’. For more information, read our blog on Cohabiting Parents & their rights.
So, while the law has been with us for nearly thirty years, what does the future hold?
Kirsty Richards, Head of Family says
Sadly with the ongoing catastrophe that has been evident for all practitioners working in legal aid, post LASPO, there are many families with significant disputes around children arrangements (s.8 of the Children Act 1989) yet they are simply ineligible for legal aid. Whilst some of them may have gateway evidence as a result of either domestic abuse or child protection concerns (Regs 33 and 34 of LASPO), they fall foul of the financial eligibility test and are not eligible for legal representation in private children act proceedings.
At NLS, we are committed to helping as many clients as possible to navigate through the court system and have offered free legal advice and undertaken pro-bono court work but it still means that many clients are representing themselves in the family court for this type of case. So, whilst the court continues to have the child’s welfare at the forefront of any decision making process, the parents involves in those disputes are often without the benefit of legal representation and therefore struggle to properly present their case to the Judge, this can impact / skew the issues before the court.
If anyone has any children act disputes, private law and public law (care and supervision), seek legal advice as early as possible so that you can be guided through the process and helped from the outset, if at all possible. At NLS, we have a number of highly specialised solicitors (members of the law society’s children panel) that will be able to offer some help in this process.