The Children Act has more than stood the test of time

Children|Family Law|May 23rd 2019

I wrote here back in March about the thirtieth anniversary of the Children Act. My modest celebration of that event has now been joined by another, emanating from a rather more illustrious source: the President of the Family Division, Sir Andrew McFarlane.

The President chose the anniversary as the subject for The Nicholas Wall Memorial Lecture 2019, given on the 9th of May. For those who don’t know, Sir Nicholas was the President himself between April 2010 and December 2012, when he retired for health reasons. Sadly, Sir Nicholas suffered from dementia, and he took his own life in 2017.

In my earlier post I gave a brief outline of what the Act did, and I refer readers who don’t know to that post. Here, I just wanted to give a flavour of Sir Andrew’s speech.

Sir Andrew used the speech to point up three areas within the Act’s provisions which he said “justify comment or consideration as we mark its 30th anniversary.” The three areas came under the headings “Making Contact Work”, Child Protection and Secure accommodation. As the second and third of those are unlikely to be of particular interest to readers of this blog, I will concentrate upon the first.

Sir Andrew set out the efforts since the passing of the Act to “make contact work”, including in particular enhancing the court’s enforcement powers and changing the terminology from ‘residence’ and ‘contact’ orders to ‘child arrangements’ orders. He then asked whether these changes made a positive difference, and concluded that: “in terms of the numbers of separated parents who still turn to a magistrate or judge to sort out the arrangements for their children after parental separation, the answer, depressingly, would seem to be ‘no’.”

However, Sir Andrew did not consider this to be the fault of the Children Act, or the law that has developed under it. He said:

“The law is plain that each parent has full and equal parental responsibility and all that the court is doing when determining an application is fixing the practical arrangements for a child’s care … The courts have been plain that it is the responsibility of parents, and not judges, to determine issues that may arise between them and that this ‘responsibility’, difficult and burdensome though it may well be, is just as much part of their responsibility to do what is best for their child as some of the happier parental tasks may be.”

In other words, the law is clear that the responsibility to sort out post-separation arrangements for children lies with the parents, and the courts will only intervene if it can be shown that without a court order the child’s welfare would suffer. Or as Baroness Hale said: “To emphasise the practical reality that bringing up children is a serious responsibility, rather than a matter of legal rights, the conceptual building block used throughout the [Act] is ‘parental responsibility.’”

The Children Act, said Sir Andrew, was “essentially sound”, even if “the manner in which the delivery of dispute resolution following parental separation often falls short, or, worse, compounds the potential for harm.” That this is so, he said, demonstrates the fact that the law can only go so far in resolving what are essentially relationship difficulties within families.

Sir Andrew concluded his look at the Act with the following glowing endorsement:

“On any view, and in the view I am sure of every Family lawyer, the Children Act 1989 was ground breaking to a very high level on the seismic scale. It changed the world of children’s law and it has more than stood the test of time. Such amendments that there have been, and there have been many, have built upon, rather than removed the core structure of the Act. There is no clamour, yea not even a whisper, that the basic concepts of child law now need further reform. The architects of the legislation, and its draftsmen, simply got it right. That that is so has been, and continues to be, to the great benefit of the children and young people whose needs it was aimed to meet.”

Like Sir Andrew, I’m sure most of us can agree with that.

I recommend that you read the full speech, which you can find here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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