What Are The Main Points Of The Children Act 1989?

The Children Act (the Act) is a seminal piece of legislation that was passed onto the statute books in 1989 and is the primary source of child welfare law in England and Wales. Essentially, the Act seeks to ensure that every child is kept safe and protected from harm, and that their welfare and developmental needs are met.

Court Orders

The Act incorporates a “no order” principle which assumes that where both parents agree to a child’s care, etc, no order is necessary, and the court will not become involved. If it is involved, then consideration must be given to a range of factors, including the child’s needs, wishes, risks, welfare, and the parent’s capabilities (see below for further commentary). The child should always be at the centre of decisions about their life and protected from any unnecessary changes. For example, under the 1989 Act, it is prohibited to change a child’s surname without the approval of every party with parental responsibility.

In terms of other orders, a Child Arrangements Order determines who the child should live with and lasts until the child’s 16th birthday. A prohibited steps order limits the parental responsibility of a parent, with a specific issue order targeting a particular situation.

Where children are at risk of serious harm, the Act enables the court to issue a care order or supervision order. A care order places the child in the care of the local authority social service department, whereas a supervision order assigns a supervisor or social worker to observe and directly support the child, with the option of applying to the court for further orders. In cases of risk of immediate harm, an emergency protection order can be issued to swiftly remove children from dangerous situations.

The Welfare Checklist

The overriding consideration in family proceedings is what is in the best interests of the child. In order to adequately address this, the court and other professionals are guided by criteria known as the “welfare checklist”. The criteria that must be considered in all proceedings involving children include:

  • The ascertainable wishes and feelings of the child concerned in light of their age and understanding. This is not defined in law, but the court is more likely to place more weight on a child’s wishes and feelings from the age of 11 or 12 onwards.
  • The child’s physical, emotional, and educational needs – these will change as the child becomes older
  • The likely effect on the child of any change in their circumstances – the court is required to consider the potential impact of any change in circumstances and will often take a decision that causes the least possible disruption.
  • The child’s age, sex, background, and any other characteristics that the court considers relevant
  • Any harm the child has suffered or is at risk of suffering – the court will weigh up the potential risk to the child and issue an order reflective of this
  • How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs
  • The range of powers available to the court in the proceedings in question – the court will consider every option and can make a wide range of orders even if they have not been applied for.

Local Authorities

The 1989 Act gave local authorities additional responsibilities to contribute to the care of children. Councils must therefore provide the services required by children in need, defined as children with disabilities or other physical or developmental requirements. A local authority must also provide accommodation for children who are not in a safe environment or have no adults with parental responsibility to look after them. This could be a community home, which all local authorities are required to provide. The duty of care owed by a local authority extends to providing young adults and care leavers who age out of the system with appropriate support to help them gain independence. The authority must also put in place systems that investigate cases of children at suspected risk of significant harm and take action where necessary.

Key guiding principles also include:

  • The best place for children to be looked after is within their own homes
  • Parents should continue to be involved with their children and any legal proceedings that may concern them, and that legal proceedings should be unnecessary in most circumstances
  • The welfare of children should be promoted by partnership between the family and the local authority
  • Children should not be removed from their family, or contact terminated, unless it is absolutely necessary
  • The child’s needs arising from race, culture, religion, and language must be taken into account

Why was the Children Act 2004 introduced? Does this replace the Children Act 1989?

Following the tragic death of Victoria Climbie in 2000, the government conducted an inquiry to help decide whether it was necessary to introduce new legislation and guidance to improve the child protection system. The inquiry found massive failings on the part of 12 separate child protection agencies which led to recommendations for a radical reform of services. The result was the Keeping Children Safe report and the Every Child Matters green paper, which were amalgamated into the Children Act 2004.

The Children Act 2004 does not replace or even amend much of the Children Act 1989. Instead, it sets out the process for integrating services to children and created the post of Children’s Commissioner for England. The 2004 Act places a duty on local authorities and their partners, including police, health service providers, and the youth justice system, to co-operate in promoting children’s wellbeing and to make arrangements to safeguard and promote their welfare.

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