Children Law in England and Wales

Introduction

Children law in England and Wales is governed principally by the Children Act 1989 (CA 1989), which provides a comprehensive statutory code for the care, upbringing, and protection of children. The Act is built on the principle that the child’s welfare is the paramount consideration and that courts should make orders only where they are better than making no order. The CA 1989 covers private law disputes between parents (such as arrangements for children following separation) and public law proceedings (such as care and supervision orders).

The Paramountcy Principle

Section 1(1) of the CA 1989 provides that when a court determines any question with respect to the upbringing of a child or the administration of a child’s property, the child’s welfare shall be the court’s paramount consideration. The paramountcy principle means that the court must focus on what is best for the child, not on the rights or wishes of the parents.

In J v C (1970), the House of Lords established that the welfare of the child is the first and paramount consideration, overriding all other considerations. The principle applies in both private law disputes between parents and public law proceedings brought by local authorities.

The welfare checklist in section 1(3) of the CA 1989 sets out factors the court must consider in determining what is in the child’s best interests: the ascertainable wishes and feelings of the child (having regard to the child’s age and understanding); the child’s physical, emotional, and educational needs; the likely effect of any change in the child’s circumstances; the child’s age, sex, background, and any characteristics the court considers relevant; any harm the child has suffered or is at risk of suffering; the capability of each of the child’s parents to meet the child’s needs; and the range of powers available to the court.

Parental Responsibility

Parental responsibility is defined by section 3 of the CA 1989 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.” Parental responsibility enables a parent to make decisions about the child’s upbringing, including education, healthcare, religion, and residence.

A mother automatically has parental responsibility. A father has parental responsibility if he is married to the mother at the time of the child’s birth or if he is registered as the child’s father on the birth register. Unmarried fathers who are not registered may acquire parental responsibility by agreement with the mother or by court order. The concept of parental responsibility reflects the principle that parenthood involves responsibilities as well as rights.

Section 8 Orders

Section 8 of the CA 1989 provides for four types of orders in private law children proceedings.

Child arrangements orders (introduced by the Children and Families Act 2014, replacing residence and contact orders) regulate with whom a child is to live and the arrangements for contact between the child and other persons. The court must presume, unless the contrary is shown, that the involvement of each parent in the child’s life will further the child’s welfare.

Prohibited steps orders prevent a parent from taking a specified step in the exercise of parental responsibility without the consent of the court.

Specific issue orders determine a specific question that has arisen in connection with any aspect of parental responsibility, such as which school the child should attend or whether the child should receive a particular medical treatment.

Orders under section 8 are made only where the court is satisfied that making the order is better for the child than making no order (the no order principle under section 1(5)).

Wardship

The High Court has inherent jurisdiction to make a child a ward of the court. Wardship vests parental responsibility in the court, and no important step may be taken in the child’s life without the court’s permission. Wardship is used in exceptional circumstances, including cases where the child is at risk of significant harm but the criteria for a care order are not met, or where the child’s situation is so complex that it requires ongoing High Court supervision.

International Child Abduction

The law on international child abduction is governed by the Hague Convention on the Civil Aspects of International Child Abduction 1980, implemented in the UK by the Child Abduction and Custody Act 1985. The Convention provides a summary procedure for the return of children wrongfully removed from or retained in their country of habitual residence.

The court must order the return of the child to their country of habitual residence unless one of the limited defences applies, including: the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views; there is a grave risk that return would expose the child to physical or psychological harm; or the child has been in the new country for more than 12 months and is settled there.

Local Authority Support for Children

Part III of the CA 1989 imposes duties on local authorities to provide services for children in need and their families. Section 17 requires local authorities to safeguard and promote the welfare of children in need within their area, providing a range of services including advice, assistance, and family support services.

Conclusion

Children law under the Children Act 1989 provides a comprehensive framework for the care and upbringing of children, centred on the welfare principle and parental responsibility. The private law provisions facilitate arrangements between parents following separation, while the public law provisions protect children from significant harm. The Act’s emphasis on the child’s welfare, the presumption of parental involvement, and the no order principle reflects the balance between protecting children and respecting family autonomy.