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Chapter 3

Comparative Law: England and Wales

Children Act 1989

3.1The English Children Act 1989 substantially replaced the existing private law governing the custody and upbringing of children and the public law concerning voluntary and compulsory care and supervision.  Statutes repealed by the Act include the Guardianship of Minors Act 1971, the Guardianship Act 1973 and the Children Act 1975.

3.2The 1989 Act had two main aims, namely, to gather together in one place, “all the law relating to the care and upbringing of children and the provision of social services for them, and to provide a consistent set of legal remedies which will be available in all courts and in all proceedings.”244  The Children Act 1989 represented a shift in the relationship between the family and state agencies for the purpose of preventing harm to children.  This was a move from concerns about child care and child abuse to one of child protection.245

3.3Before the Children Act 1989, children’s law had developed on an ad hoc basis through both statute and case law.  The law had become more and more complicated and technical without any underlying general philosophy.  Remedies and procedure varied according to the jurisdiction invoked and the court involved.  There were, for example, separate statutes conferring different powers on the courts to make orders relating to children, in divorce proceedings, in proceedings for financial relief before magistrates, and in proceedings which were solely concerned with disputes about children.246

Parenthood and guardianship

3.4Before the 1989 Act, parental rights and duties were based upon the concept of guardianship rather than parenthood.  Guardianship gave power over a child’s upbringing to parents.  Parental or natural guardianship was originally confined to the father of a legitimate child.  The Guardianship of Infants Act 1925 gave the mother “like powers” to those of the father to apply to the court in any matter affecting the child but stopped short of making her a joint guardian during the father’s lifetime.  The Guardianship Act 1973 provided that the mother’s rights and authority were the same as the father’s but did not equate her position to the natural guardianship of the father, which had never been expressly abolished.

3.5The 1989 Act has abolished the  common law rule that a father was the natural guardian of his legitimate child.247  It confers equal parenthood on married

244 See Hoggett, “The Children Bill: The Aim” [1989] Fam Law 217.

245 Parton, Governing the Family, Child Care, Child Protection and the State, (1991), 3.

246 Bromley & Lowe, Bromley’s Family Law (1992) 250.

247 Section 2(4).

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