The Children Act 1989 Issues - Essay Example

?The Children Act 1989 The Children Act 1989 (CA89) was radical legislation that brought together different aspects of public and private law bearingon children into a single Act focused on the welfare of children.1 For the first time in legislation concerning children, the law took away the concept of ‘parental rights’ and substituted ‘parental responsibility’. Initially, CA89 came into practice in England and Wales in 1991 and in 1996 in Northern Ireland. CA89 does not apply under Scottish Law due to the practice of the different legal system. Parental Responsibility Parental responsibility is a legal concept mentioned in the Children Act 1989. In which, the rights, powers, duties, responsibilities and authority of the parents are provided concerning their children. In addition to that, it enables the court to hear and make decisions about the welfare of the child. The Adoption and Children Act 2002 changed the law pertaining to the parental responsibility.2 For children born on or after 1 December 2003 [England and Wales], 4 May 2006 [Scotland] and15 April 2002 [Northern Ireland], both biological parents remain owners of the parental responsibility if they are registered on the birth certificate of the child [whether or not the parents are married]. Contact Order definition According to section 8(1) of the Children Act, a contact order means an order requiring the person with whom a child lives or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.3 However, in case of clash between the interests of the parents and the interests of children, the interests of the child will be preferred as was stated by the Court of Appeal in Re P (Contact: Supervision) [1996] 2FLR 314 at p.328. What are the interests of a child that the court is going to protect? For example, the child does not have only physical needs and educational needs, but also requires emotional support in order to grow naturally and complete the cycle of mental and physical growth. If parents are only able to satisfy the physical and education needs, but not the emotional one, it would not be easy for the court to serve and protect the interests of the child due to a clash between the different interests. Even in this case, if the court grants the contact order, the court compromises on the emotional needs of the child. On the other hand, if the court does not entertain the contact order request from the parents, the court again fails to properly serve the interests of the child. In order to ascertain the interests of the parents and the interests of the child, the court needs to consider the contact order factors that assist whether contact order should be made or not. They include: Above all, the court has to consider what they believe to be in the best interests of child and the welfare of the child remains the main priority. In this regard, the feelings and wishes of the child as far as can be ascertained and they must be considered in the light of the child’s mental level and understanding: There is no specific age bracket provided to ascertain the mental level of a child. If the child faces a very specific mental disorder and the doctors remain unsuccessful to highlight the impact of the mental disorder on the child’s main mind function, under that situation, the age consideration may become irrelevant. Even the court decision to issue a contact order will not be able to serve the main objective of the child welfare. The court is required to take into account the child’s emotional, physical and educational needs as well: For example, if parents want to nurture their child and they are financially in a position to fulfil the physical and educational needs of the child, but they are unable to satisfy the emotional needs of the child. There are no particular emotional needs mentioned in the Children Act 1989 that must be satisfied before granting a contact order. In addition, there are different types of emotions and how many of them should be satisfied in order to grant a contact order to the parents. The likely effect on any change in the circumstances of the child: Assessing change and its effects on the child’s mental, physical and educational needs does not look an easy task. Even the court grants a contact order to the parents by keeping in view to protecting and serving the interests of the child. Is there any specified method of the effect of the change in the child circumstances? Even if one becomes able to determine the effects of the change; it would not be easy to measure the impact of the change on the emotional and mental capacities of the child. Any harm which he is at risk of suffering or he has suffered: This factor does not further explain a risk assessment process. Although this factor has considerable significance as far as the contact order for a child is concerned, yet there are no particular standards or risks mentioned in this factor. For instance, if a court order requires a risk assessment process of a child before going to further proceed on a particular case, the inquiring party would not be in a position to select a particular angle by which risk assessment process should be initiated. Even if a particular direction is provided by the court, it would not be easy to highlight the emotional risks being faced by the child and their subsequent impacts over the mental functioning capacity of the child. The capability of each of the parents or any other person in relation to whom the court considers the question to be relevant, may be determined: Is there any particular definition defining the term ‘capability’ of the parents or any related person? In the absence of the definition of capability, the inquiring party would not be able to properly carry out the process of assessment. In which, the capability of the parents is going to be evaluated. In addition to that, there are no specified conditions selecting or rejecting the capability of the parents or the related person. For example, if only financial capability is made as a standard to determine the capability of the parents, the presence of emotional disability in the parents would then be compromised and this could bring compromises on the interests of the child. This can be a gray area and may be misused by the parents wishing to grant a contact order. There are numerous factors that need to be considered prior to granting a contact order. Not all factors are considered but a relevant few. European Convention on Human Rights on Family Law The European Convention on Human Rights explores the potential of the Convention for protecting the rights of family members, and takes into account the limit to which the activities of those members are considered as falling within the private capacity and hence beyond the sphere of State or Convention regulation.4 Article 25 of the Convention provides that the European Commission may obtain applications from any group of individuals, non-governmental organization or from any person claiming to be the victim of a violation of Convention’s provision by one of the States. It is based on the fact that the related State has recognised and accepted the competence of the Commission to entertain such applications. Moreover, it may be highlighted that everyone within the State’s jurisdiction is protected by the Convention, not simply nationals of the State and all of the signatory States of the Convention have granted the right of individual petition.5 The European Commission and European Court of Human Rights can only proceed when the relevant State has recognised the competence of the Commission. If the related State has not recognised the competence of the Commission, no proceedings on the family and children welfare related claims could be heard. When a person complains to the European Commission, its task is first to determine and decide if the complaint is admissible within the existing terms of the Convention. If the complaint is admitted, the Commission then carries out the merits of the claim. And if it decides that there appears to have been a violation of the Convention, the complaint can then be referred to the Committee of Ministers of the Council of Europe, which determines whether to forward the case to the European court of Human rights or to itself hear the matter. The Convention does not expressly guarantee the adoption right. And the applicants who have been disallowed permission to do so have had to argue that the right is not explicit but implied in the Articles 8 and 12 of the Convention. However, the Commission has acknowledged that the right to have a family, which is guaranteed in Article 12, and includes a right to adopt a child, but subject to the national laws of the State.6 This provision of the Convention gives more priority to the national laws of the State. The State laws pertaining to the children adoption and fostering have more relevance to the provisions of the European Convention on Human Rights on Family Law. Even if it has jurisdiction to hear the cases pertaining to the welfare of the children, the local relevant laws of the State have more applicability. This means that the Convention supports that national laws cannot be overruled but they must be applied. Subsequent to that, Europe launched the 1996 European Convention on the Exercise of Children’s Rights (ECECR), and all the contemporary European national legislation carefully work on improving the internationally provided guidelines for the children issues.7 Moreover, the legal status of children and their rights, and the general legal focus on the children’s autonomy, has brought greater complexity in the court proceedings pertaining to the parental contact and custody particularly in Europe.8 This clearly authenticates that the legal proceedings pertaining to the welfare of children under the national and European legal work have not been working in the similar direction. Instead of providing a workable mechanism for the children welfare in the European countries, the presence of dual legal system has created more problems relevant to the parental custody and the parental contact. There are a number of international instruments adopted in Europe, which indirectly or directly provide the child’s right to contact and their procedural rights. They include: (1) The 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR); (2) The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Child Protection Convention); (3) The 980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention); (4) The 1996 European Convention on the Exercise of Children’s Rights (ECECR); (5) The 2002 White Paper of the Council of Europe on Principles Concerning the Establishment and Legal Consequences of Parentage; (6) The Council Regulation (EC) No. 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility (Brussels II bis); (7) The 2003 European Convention on Contact Concerning Children (ECCC).9 The English law considerably differs with the European system. The English legal system remains more focused on the remedies available to ensure contact between children and their parents. In fact, traditional English law looks reluctant to use the term “rights” in the family law.10 In addition to that, although the right to contact is not considerably explained, no difference is provided in the treatment of parents without or with parental responsibilities when it comes to contact. The European Family Law Commission, which is assigned to harmonize and unify the European Family Law11, collected and published the Principles of European Family Law Regarding Parental Responsibilities. In which, 39 principles have been included. A child’s right to contact and a child’s procedural rights have also been incorporated in the basic principles.12 On the basis of above information, the European Convention on Human Rights on Family Law largely gathers rights and interests of the children and less focus has been provided toward the interests of the father and the mother. Throughout this period, the European Convention has worked more for the interests of the children and less focus has been given to the interests of the parents. References Allen, N (2005), making a sense of the Children Act 1989, 4th ed, John Wiley & Sons Ltd: Chichester. Boele-Woelki, K, Ferrand, F, Gonzales, Beilfuss, C, Jantera-Jareborg, M., Lowe, N., Martiney, D (2007), Principles of European family law regarding parental responsibilities . Antwerp, Belgium: Intersentia Douglas, G, (1988), ‘The Family and the State under the European Convention on Human rights,’ International Journal of Law and the Family, 2: 76-105 Lowe, N V, & Douglas, G (2007), Bromley’s family law, Oxford University Press: New York. Payne, H (2008), ‘UK law regarding children: essentials for the paediatrician,’ Paediatrics and Child Health, 18(5): 207-212. Resetar, B, & Emery, RE, (2008),’ Children’s Rights in European Legal Proceedings: Why Are Family Practices of Different from Legal Theories,’ Family Court Review, Vol. 46 (1): 65-77. Tenreiro, M, & Ekstrom, M (2003), ‘Unification of private international law in family law matters within the European Union’, In K. Boele-Woelki (Ed.), Perspectives for the unification and harmonisation of family law in Europe (pp. 185–193), Antwerp, Belgium: Transnational Publishers. Read More