Children Act 1989

The Children Act 1989 created modern child law in England and Wales. Section 1 establishes that the child's welfare is paramount in all decisions. The welfare checklist (s.1(3)) lists factors the court must consider. Section 31(2) sets the threshold for care orders — that the child is suffering or likely to suffer significant harm attributable to the care given. Section 17 imposes the 'child in need' duty on councils. Section 47 imposes the investigation duty on suspected significant harm. Section 22 governs looked-after children. Public law (state intervention) and private law (parental disputes) both run under the Act.

In practice, the Act shapes two very different kinds of case, and knowing which one you are in changes everything about how you should respond. Private law disputes are between parents or family members about where a child lives and who they spend time with; the state is not a party, legal aid is limited to cases involving domestic abuse or child protection concerns, and the court starts from the presumption that involvement of both parents furthers the child's welfare unless the contrary is shown. Public law cases are brought by a local authority, legal aid is automatic and non-means-tested for parents, and a children's guardian is appointed.

Worked example: after a separation, Jade and Marcus cannot agree on arrangements for their seven-year-old. They must attend a MIAM before applying to court unless an exemption applies. When mediation fails, Marcus applies for a child arrangements order. Cafcass carries out safeguarding checks and later files a section 7 report. The judge applies the welfare checklist — the child's wishes and feelings in the light of her age and understanding, her physical, emotional and educational needs, the likely effect of change, any harm suffered or at risk, and how capable each parent is of meeting her needs — and makes an order, but only if making one is better for the child than making none.

The misconceptions are persistent. There is no legal presumption of shared care and no default split of time; the court decides on the facts. Mothers have no automatic advantage in law, and there is no age at which a child gets to choose — their wishes carry increasing weight but are never determinative. In public law, agreeing to section 20 accommodation is voluntary and a parent with parental responsibility can withdraw consent, which is quite different from a care order. And the threshold in section 31 must be proved on the facts before any care order can be made, however concerning the wider picture.

The Act defines parental responsibility, the looked after child status, and the role of Cafcass and the children's guardian. Read our guides to child arrangements and care proceedings, and get advice early if a local authority is involved.