The Children Act 1989: What Is It?

There can be few, if any, statutes that inspire a novel and a feature film, but such is the importance and effect of the Children Act 1989 that it easily merits this distinction.

So what exactly is the Children Act 1989, and why is it so important?

The Children Act, as the name implies, sets out the law relating to the welfare of children in England and Wales. It is not the only Act to deal with child welfare, but it is the foundation upon which all child welfare law is built.

The Act sets out the law both in relation to disputes between parents over arrangements for their children (known as ‘private law’) and cases where the local authority has become involved due to concerns over the welfare of a child (known as ‘public law’).

The story of the Children Act 1989

We will look in a little more detail at private and public law in a moment, but first we should look at how the Children Act 1989 came into being, and the intention behind it.

Prior to the Act the law relating to children was complex, and contained in various different pieces of legislation. The Act therefore aimed to bring the law together, clarify and simplify it.

There were also concerns that the existing law could place the wrong emphasis upon the legal relationship between a parent and a child. Thus, for example, the concept of ‘parental responsibility’ was introduced by the Act, emphasising that parents have responsibilities towards their children, rather than rights over them.

The Act also confirmed what became known as the ‘paramountcy principle’, that when determining any question in relation to a child, the child’s welfare should be the court’s paramount consideration.

To assist the court in deciding what is best for a child’s welfare the Act set out a list of factors for the court to consider, such as the wishes of the child, the child’s needs and any harm that the child had suffered or was at risk of suffering. This list became known as the ‘welfare checklist’.

And in relation to private law disputes the Act did away with the term ‘custody’, which was considered to give the wrong message, replacing it first with the term ‘residence’, and subsequently with the concept of ‘child arrangements’.

Section 47: The duty of the local authority

Turning to public law cases, the Children Act 1989 introduced in section 47 a duty for local authorities to investigate where (amongst other things) they have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm.

In such a situation the local authority must make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare, such as issuing care proceedings.

And when care proceedings are issued the Act states that the court must, before making a care order, be satisfied that the child is suffering, or is likely to suffer, significant harm, and that the harm, or likelihood of harm, is attributable to either: the care given to the child (or likely to be given to him if the order were not made) not being what it would be reasonable to expect a parent to give to them; or the child’s being beyond parental control. This is known as the ‘threshold criteria’.

The Act also gives other duties to local authorities, such as to provide accommodation for children who are not in a safe environment, or have no adults with parental responsibility to look after them.

Far reaching reform

At the time the Children Act 1989 was passed the then Lord Chancellor, Lord Mackay, described it as “the most comprehensive and far reaching reform of child law which has come before Parliament in living memory.”

And the Act has passed the test of time. More than thirty years on, it is still considered by many experts that the basic concepts introduced by the Act are generally working well.

As Sir Andrew McFarlane, the President of the Family Division, commented: “The architects of the legislation, and its draftsmen, simply got it right. That this is so has been, and continues to be, to the great benefit of the children and young people whose needs it was aimed to meet.”

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England. For expert advice, please contact the team.