10.1 The Children Act 1989
10.1 (iii) Amendments to the ActThe Children and Families Act 2014 (CFA 2014) received the Royal Assent on 13 March 2014 and almost all of its provisions came into force on 22 April 2014. The Act makes a number of significant changes to children’s law in England and Wales which Sir James Munby, President of the Family Division, has hailed as ‘a cultural revolution’ and as ‘the largest reform of the family justice system any of us have seen or will see in our professional lifetimes’ (11th View from the President's Chamber: The process of reform, 11 April 2014). These changes include the introduction of a single Family Court.
Private law proceedings The Act introduces, among other things, a new subsection into section 1 of the Children Act 1989, adding a presumption of parental involvement; and replaces residence and contact orders with ‘a child arrangements order’. The requirement to attend a Mediation Information and Assessment Meeting is now set out in statute (s. 10 CFA 2014). The Act also removes the requirement for the court to consider, on divorce and dissolution, whether to exercise its powers under the Children Act 1989 and consequently the Statement of Arrangements Form (D8A) no longer exists (s. 17 CFA 2014).
Public law proceedings The Act imposes, among other things, a 26-week deadline for care and supervision proceedings, and removes the 28-day time limit for interim care and supervision orders. It also introduces new provisions regarding post-adoption contact (s. 9 CFA 2014).
10.3 The welfare principles
A presumption of parental involvement (section 1(2A))Section 11 of the Children and Families Act 2014 introduces a presumption of parental involvement into section 1 of the Children Act 1989.
Subsection 1(2B) defines ‘involvement’ as involvement of some kind, either direct or indirect, but not any particular division of a child’s time. A further provision in section 6 defines a ‘parent’ as a parent of the child concerned who can be involved in the child’s life in a way that does not put the child at risk of suffering harm. There is not, as yet, a commencement date for these provisions.
10.4 Section 8 orders
A child arrangements orderSection 12 of the Children and Families Act 2014 amends section 8(1) of the Children Act 1989 to replace contact and residence orders with a ‘child arrangements order’, which is defined as: ‘an order regulating arrangements relating to any of the following - (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person’.
The provisions about child arrangements orders are now in force; and any residence or contact order made before 22 April 2014 is now deemed to be a child arrangements order. The Family Proceeding Rules 2010 and accompanying Practice Directions have been amended to reflect these changes.
Existing case law on residence and contact orders is still relevant It is important to be aware of the fact that the case law which has developed in relation to residence and contact orders remains relevant when a court is deciding whether or not to make a child arrangements order, and, if so, in what terms.
No changes to the legislation on specific issue and prohibited steps orders The Children and Families Act 2014 has not made any changes to specific issue orders or prohibited steps orders.
10.10 Applicants for section 8 orders
10.10 (b) (ii) Other personsThe prospects of success are relevant to an application for leave to apply for a section 8 order under s. 10(9) of the Children Act 1989, but they are not necessarily decisive (per Black LJ in Re B (Paternal Grandmother: Joinder as Party)  EWCA Civ 737).
Applications by ‘donor’ fathers for leave to apply for a section 8 orderThe following case demonstrates how the reforms passed by HFEA 2008, and the policy underpinning those reforms, are material considerations for the court in determining an application for leave by a ‘donor’ father under s. 10(9) of the Children Act 1989. It is an important case as it is thought to be the first case involving an application for leave to apply for a section 8 order by a person who is the biological father of a child (by virtue of HFEA 2008) but not the legal father.
January 2014 update
Proposed amendments to the Children Act 1989The Children and Families Bill 2013-14 (which is currently progressing through Parliament) makes changes to certain provisions in the Children Act 1989 as follows:
An amendment to the welfare principle in section 1 of the Children Act 1989Clause 11(1) requires the insertion of a new provision after section 1(2) as follows:
‘(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’.
A new ‘child arrangements order’Clause 12 introduces the new child arrangements order whereby section 8(1) of the Children Act 1989 is amended as follows.
(2) Omit the definitions of ‘contact order’ and ‘residence order’.
(3) After ‘In this Act— insert—
‘’child arrangements order’ means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person.
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