Incredible how time flies. I remember as if it were yesterday when the Children Act was passed, attending various seminars to familiarise myself with its provisions (the main provisions of the Act did not come into force until 1991). In the following thirty years the Act has gained a familiarity, amongst not just family lawyers but also many non-lawyers, in a way that I don’t think many other statutes have. It has even spawned its own novel and film, the latter being reviewed here by Naheed Taj, Managing Partner of Stowe Family Law’s reading office, last September.
What was so special about the Act?
The Act might now be remembered, at least amongst those private law practitioners who are old enough, primarily for doing away with the outdated terminology of ‘custody’ and ‘access’, replacing them with ‘residence’ and ‘contact’ (and, later, with ‘child arrangements orders’). But the Act was about much more than that. As Professor Jo Delahunty QC (see below) explains:
“The Children Act 1989 embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm.”
As that quote suggests, the Act brought together both private and public children law ‘under the same roof’ (the child must have been found to have suffered, or be likely to suffer, ‘significant harm’ before a care order can be made). Thus, whether the court is considering how to resolve a dispute between parents over arrangements for their child, or whether a child should be removed from the parents by the state, the same basic principles apply. By section 1 of the Act the welfare of the child is the court’s ‘paramount consideration’, to be determined by reference to the ‘welfare checklist’ set out in section 1(3).
Accordingly, the law is now ‘child centric’: when considering a question in relation to a child’s upbringing we no longer talk of a parent’s rights in relation to the child, but rather about what is best for the child. This is a lesson that, sadly, many parents have still not learned, despite the length of time that the Children Act has been with us – we still regularly come across parents seeking to enforce their ‘parental rights’.
Perhaps somewhat confusingly, as the above quote also suggests, the Act brought in the new concept of “parental responsibility”, which it defines 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.” But in this context “rights” really mean something else. They are not to do with what may benefit the parent (if I may put it that way), but rather about the parent looking after the interests of the child, for example by choosing which school the child should attend. In other words, hold on to the concept of “responsibility”, rather than “rights”.
So the Act really changed the landscape when it came to dealing with children issues, and that new landscape has now been with us for nearly thirty years. But what of the future?
Recently Professor Jo Delahunty QC, who is one of the UK’s leading barristers specialising in cases concerned with families and children, and who was appointed Gresham Professor of Law in the summer of 2016, asked the important question: is the Act still fit for purpose?
The question was asked at a lecture given by Professor Delahunty for Gresham College on the 31st of January. You can watch a recording of the lecture here, and if you have an interest in the subject then I strongly recommend that you do (a more detailed PDF transcript is also available). I won’t give the game away by telling you the Professor’s answer to the question, but I will say that the journey she takes us on is both enlightening (including going into a lot more detail about the provisions of the Act, and the rationale behind them) and thought-provoking.
Of course, the Act does not stand alone, as Professor Delahunty makes clear. In particular, there is the issue of the destruction of legal aid for private law cases, which has changed things so dramatically in recent years. No matter how good the legislation may be, if parents do not have access to proper legal advice (and, if necessary, representation), then the law is never likely to operate optimally and, for some parents who decide it is too much for them to go to court without a lawyer, it may not even operate at all.
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Author: John Bolch