It has been 25 years since the Children Act 1989 was introduced on 14th October 1991.
The act provides the court with a toolkit so it can try to find a fair outcome to children custody, known as children law, cases.
At the time the Children Act was lauded by Lord Chancellor as being the “most comprehensive and far reaching reform of child law which has come before Parliament in living memory”.
Prior to 1991 the legislation dealing with different aspects of Children Law was disparate. Whether that be private disputes between parents of a child, or public law cases involving the local authority social services, on behalf of the state.
The introduction of the act at the time stated an intention to “reform the law relating to children” which although certainly was the case, opinions will inevitably differ depending on an individual’s experience of the legislation in action.
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 issue of delay hasn’t historically been high up on the court’s agenda. This has now changed substantially. Nowadays the Family Court deals with such applications as well as the Public Law Outline and Child Arrangements Programme. Tighter case management powers have been introduced, including timescales for dealing with cases for the court, when dealing with public and private law cases respectively.
The ‘welfare test’ is determined by the Family Court with reference to the welfare checklist, which is set out in the Children Act 1989. This includes but is not limited to matters such as the child’s needs, wishes and feelings, age, sex, and background. It also considers the impact of any proposed changes in the child’s upbringing when making an order.
Application of the welfare test can result in perceived ‘rights’ of adults taking a backseat when compared to the needs of the child concerned. This is particularly true when courts take a long-term view of what might be considered in a child’s best interests. In practical terms, this can mean that the emotional needs of a child take priority over a parent’s desire to spend time with their children.
Not being able to spend time with your child is clearly a difficult prospect for a loving parent to accept. A recent insertion into the Children Act 1989 called the “presumption of parental involvement” offers some reassurance. However, this is not an assertion of a child spending a minimum amount, or even direct, time with both its parents. The child’s best interests are still considered the most important factor in whether, where, when or how a child should spend time with all its family members.
Each family is unique, no two situations the same and there is no ‘one size fits all’ solution. The family lawyers at Slater and Gordon Lawyers understand this and work to get the best solution for you and your children. Call us on freephone 0800 916 9055 or contact us online.
Chris Fairhurst is a children lawyer for Slater and Gordon in Manchester.