The Children Act 1989

Introduction

The Children Act 1989 is the principal legislation governing the care, upbringing, and protection of children in England and Wales. The Act consolidated and reformed the law relating to children, establishing that the child’s welfare is the paramount consideration in court proceedings. The Act is built on the principle that the state should only intervene in family life where necessary to protect the child from significant harm.

The Welfare Principle and Checklist

Section 1(1) of the Children Act 1989 establishes the paramountcy principle: 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. Section 1(2) introduces the principle of no delay: any delay in determining the question is likely to prejudice the child’s welfare. Section 1(3) sets out the welfare checklist factors: the child’s wishes and feelings; the child’s physical, emotional, and educational needs; the likely effect of any change; the child’s age, sex, background, and relevant characteristics; any harm suffered or at risk; the capability of parents; and the range of powers available to the court. Section 1(5) provides that a court shall not make an order unless doing so would be better for the child than making no order at all (the no order principle).

Part II: Orders and Private Law

Part II (sections 8–16) governs private law orders relating to children. Section 8 defines four types of orders: a child arrangements order (regulating where and with whom a child lives or has contact, replacing the former residence and contact orders); a prohibited steps order (preventing a parent from taking specified steps without court consent); a specific issue order (determining a specific question about the child’s upbringing); and a section 8 order generally for a specified period. Section 10 permits applications for section 8 orders by parents, guardians, and others with parental responsibility; other persons require the court’s leave.

Part III: Local Authority Support for Children and Families

Part III (sections 17–30) imposes duties on local authorities to provide services for children and their families. Section 17 imposes a general duty to safeguard and promote the welfare of children in need, and to promote their upbringing by their families, through a range of services (day care, family centres, financial support, advice and counselling). A child is “in need” if they are unlikely to achieve or maintain a reasonable standard of health or development; their health or development is likely to be significantly impaired; or they are disabled (section 17(10)). Section 20 requires local authorities to provide accommodation for children whose parents cannot care for them. Section 23 requires local authorities to maintain a care plan for looked-after children.

Part IV: Care and Supervision Orders

Part IV (sections 31–42) governs public law intervention to protect children from significant harm. Section 31(2) sets the threshold criteria: a court may make a care or supervision order only if it is satisfied that the child is suffering or is likely to suffer significant harm attributable to the care given to the child not being what it would be reasonable to expect a parent to give. The harm or likelihood of harm must be substantial (section 31(9): “ill-treatment or the impairment of health or development”). A care order (section 33) vests parental responsibility for the child in the local authority, shared with parents but exercised to safeguard the child’s welfare. A supervision order (section 35) places the child under the local authority’s supervision without transferring parental responsibility. Section 44 provides for emergency protection orders covering immediate risk of significant harm.

Part V: Protection of Children

Part V (sections 43–52) provides additional protective measures. Section 43 permits applications for child assessment orders to a Family Proceedings Court when there is reasonable cause to suspect the child is suffering or likely to suffer significant harm. Section 44 provides for emergency protection orders (EPOs) of up to eight days, extendable by seven days, when there is reasonable cause to believe the child is likely to suffer significant harm. Section 46 permits police to take a child into police protection (up to 72 hours) without a court order. Section 47 imposes a duty on local authorities to investigate when they have reasonable cause to suspect a child is suffering or likely to suffer significant harm.

Parental Responsibility

Section 2 consolidates the concept of parental responsibility, defined in section 3(1) 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.” Mothers automatically have parental responsibility. Married fathers and fathers registered on the birth certificate after 1 December 2003 have automatic parental responsibility. Unmarried fathers not registered may acquire parental responsibility through a parental responsibility agreement, court order, or becoming the child’s guardian. Since 2015, an unmarried father registered on the birth certificate automatically acquires parental responsibility regardless of registration date.