The Children Act 1989 : the private law
著者
書誌事項
The Children Act 1989 : the private law
（Current legal topics）
Fourmat, 1991
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内容説明・目次
内容説明
"The Children Act 1989" radically reforms the law relating to children in both the public and the private spheres. This short guide concentrates on the private law implications contained mainly in Parts I and II of the Act, and considers the transitional provisions. It provides a concise commentary, highlighting the reforms against the background of the old law. While leaving the familiar "welfare principle" intact, the Act introduces a new approach for the court - a presumption that no order is to be made unless to do so is considered better for the child than the making of no order at all. This may have important ramifications, particularly with regard to the usual orders sought to confirm arrangements made for children on divorce. Parental rights and duties are replaced by the all-embracing notion of "parental responsibility", which will not be removed from either parent on divorce. The notions of custody and access become redundant and disputes about children can instead be resolved by applications for "residence orders" and "contact orders" under section 8.
The Act radically amends section 41 of the "Matrimonial Causes Act 1973" and completely changes the way courts consider arrangements for children on divorce - a change likely to cause consternation at first. For the first time, unmarried parents may share parental responsibility for their children by means of an agreement rather than by court order, and the law of guardianship is also reformed. The role of wardship is much diminished; section 8 introduces "specific issue orders" and "prohibited steps orders" which will be available from the magistrates' courts, county courts and the High Court. While falling short of a family court, the Act does attempt to harmonize proceedings in all the courts, and proceedings may be commenced in and transferred between all three family jurisdictions. The procedural rules attempt to eliminate delay by giving the court a more dominant role in imposing timetables and requiring the court to have regard to the prejudicial effect on the child of delay. Courts will be able to make orders whenever it considers appropriate, whether or not an order has been applied for.
Thus, the Act aims to enable parents to make their own arrangements with as little interference as possible (the "no order" presumption); and on the other seeks to give courts maximum flexibility in finding the appropriate course of action, of its own motion, if necessary.
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