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Contents
(1) When a court determines any question with
respect to—
(a) the upbringing of a
child; or
(b) the administration
of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount
consideration.
(2) In any proceedings in which any question
with respect to the upbringing of a child arises, the court shall have regard
to the general principle that any delay in determining the question is likely
to prejudice the welfare of the child.
(3) In the circumstances mentioned in subsection
(4), a court shall have regard in particular to—
(a) the ascertainable
wishes and feelings of the child concerned (considered in the light of his age
and understanding);
(b) his physical,
emotional and educational needs;
(c) the likely effect on
him of any change in his circumstances;
(d) his age, sex,
background and any characteristics of his which the court considers relevant;
(e) any harm which he
has suffered or is at risk of suffering;
(f) how capable each of
his parents, and any other person in relation to whom the court considers the
question to be relevant, is of meeting his needs;
(g) the range of powers
available to the court under this Act in the proceedings in question.
(4) The circumstances are that—
(a) the court is considering whether to make,
vary or discharge a section 8 order, and the making, variation or discharge of
the order is opposed by any party to the proceedings; or
(b) the court is
considering whether to make, vary or discharge a special guardianship order or an order under Part IV.
(5) Where a court is considering whether or
not to make one or more orders under this Act with respect to a child, it shall
not make the order or any of the orders unless it considers that doing so would
be better for the child than making no order at all.
(1) Where a child’s father and mother were married to each
other at the time of his birth, they shall each have parental responsibility
for the child.
(1A) Where a child—
(a) has a parent by
virtue of section 42 of the Human Fertilisation and
Embryology Act 2008; or
(b) has a parent by virtue of section 43 of that
Act and is a person to whom section 1(3) of the Family Law Reform Act 1987
applies,
the child's mother and the other parent shall each have
parental responsibility for the child.
(2) Where a child’s father and mother were not
married to each other at the time of his birth—
(a) the mother shall
have parental responsibility for the child;
(b) the father shall have parental responsibility for the child if he
has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.
(2A) Where a child has a
parent by virtue of section 43 of the Human Fertilisation
and Embryology Act 2008 and is not a person to whom section 1(3) of the Family
Law Reform Act 1987 applies—
(a) the mother shall
have parental responsibility for the child;
(b) the other parent
shall have parental responsibility for the child if she has acquired it (and
has not ceased to have it) in accordance with the provisions of this Act.
(3) References in this Act to a child whose
father and mother were, or (as the case may be) were not, married to each other
at the time of his birth must be read with section 1 of the Family Law Reform
Act 1987 (which extends their meaning).
(4) The rule of law that a father is the natural
guardian of his legitimate child is abolished.
(5) More than one person may have parental
responsibility for the same child at the same time.
(6) A person who has parental responsibility for
a child at any time shall not cease to have that responsibility solely because
some other person subsequently acquires parental responsibility for the child.
(7) Where more than one person has parental
responsibility for a child, each of them may act alone and without the other
(or others) in meeting that responsibility; but nothing in this Part shall be
taken to affect the operation of any enactment which requires the consent of
more than one person in a matter affecting the child.
(8) The fact that a person has parental
responsibility for a child shall not entitle him to act in any way which would
be incompatible with any order made with respect to the child under this Act.
(9) A person who has parental responsibility for
a child may not surrender or transfer any part of that responsibility to
another but may arrange for some or all of it to be met by one or more persons
acting on his behalf.
(10) The person with whom any such arrangement is
made may himself be a person who already has parental responsibility for the
child concerned.
(11) The making of any such arrangement shall not
affect any liability of the person making it which may arise from any failure
to meet any part of his parental responsibility for the child concerned.
(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority
which by law a parent of a child has in relation to the child and his property.
(2) It also includes the rights, powers and
duties which a guardian of the child’s estate (appointed, before the
commencement of section 5, to act generally) would have had in relation to the
child and his property.
(3) The rights referred to in subsection (2)
include, in particular, the right of the guardian to receive or recover in his
own name, for the benefit of the child, property of whatever description and
wherever situated which the child is entitled to receive or recover.
(4) The fact that a person has, or does not
have, parental responsibility for a child shall not affect—
(a) any obligation which
he may have in relation to the child (such as a statutory duty to maintain the
child); or
(b) any rights which, in
the event of the child’s death, he (or any other person) may have in relation
to the child’s property.
(5) A person who—
(a) does not have
parental responsibility for a particular child; but
(b) has care of the child,
may (subject to the provisions of this Act) do what is
reasonable in all the circumstances of the case for the purpose of safeguarding
or promoting the child’s welfare.
(1) Where a child’s father and mother were not
married to each other at the time of his birth, the father shall acquire parental responsibility for
the child if—
(a) he becomes
registered as the child’s father under any of the enactments specified in
subsection (1A);
(b) he and the child’s
mother make an agreement (a “parental
responsibility agreement”) providing for him to have parental
responsibility for the child; or
(c) the court, on his
application, orders that he shall have parental responsibility for the child.]
(1A) The enactments referred to in subsection (1)(a) are—
(a) paragraphs (a), (b)
and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration
Act 1953;
(b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and
20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act
1965; and
(c) sub-paragraphs (a),
(b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern
Ireland) Order 1976.
(1B) The Secretary of State may by order amend
subsection (1A) so as to add further enactments to the list in that subsection.
(2) No parental responsibility agreement shall
have effect for the purposes of this Act unless—
(a) it is made in the
form prescribed by regulations made by the Lord Chancellor; and
(b) where regulations
are made by the Lord Chancellor prescribing the manner in which such agreements
must be recorded, it is recorded in the prescribed manner.
(2A) A person who has
acquired parental responsibility under subsection (1) shall cease to have that
responsibility only if the court so orders.
(3) The court may make an order under subsection
(2A) on the application—
(a) of any person who
has parental responsibility for the child; or
(b) with the leave of
the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c),
to section 12(4).]
(4) The court may only grant leave under
subsection (3)(b) if it is satisfied that the child
has sufficient understanding to make the proposed application.
(1) Where a child has a parent by virtue of
section 43 of the Human Fertilisation and Embryology
Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act
1987 applies, that parent shall acquire parental responsibility for the child
if—
(a) she becomes
registered as a parent of the child under any of the enactments specified in
subsection (2);
(b) she and the child's
mother make an agreement providing for her to have parental responsibility for
the child; or
(c) the court, on her
application, orders that she shall have parental responsibility for the child.
(2) The enactments referred to in subsection (1)(a) are—
(a) paragraphs (a), (b)
and (c) of section 10(1B) and of section 10A(1B) of the Births and Deaths
Registration Act 1953;
(b) paragraphs (a), (b)
and (d) of section 18B(1) and sections 18B(3)(a) and 20(1)(a) of the
Registration of Births, Deaths and Marriages (Scotland) Act 1965; and
(c) sub-paragraphs (a),
(b) and (c) of Article 14ZA(3) of the Births and Deaths Registration (Northern
Ireland) Order 1976.
(3) The Secretary of State may by order amend
subsection (2) so as to add further enactments to the list in that subsection.
(4) An agreement under subsection (1)(b) is also
a “parental responsibility agreement”, and section 4(2) applies in relation to
such an agreement as it applies in relation to parental responsibility
agreements under section 4.
(5) A person who has acquired parental
responsibility under subsection (1) shall cease to have that responsibility
only if the court so orders.
(6) The court may make an order under subsection
(5) on the application—
(a) of any person who
has parental responsibility for the child; or
(b) with the leave of
the court, of the child himself,
subject, in the case of parental responsibility acquired under subsection (1)(c),
to section 12(4).
(7) The court may only grant leave under
subsection (6)(b) if it is satisfied that the child
has sufficient understanding to make the proposed application.]
(1) Where
a child’s parent (“parent A”) who has parental
responsibility for the child is married to, or a civil partner of, a person who
is not the child’s parent (“the step-parent”)—
(a) parent A or, if the
other parent of the child also has parental responsibility for the child, both
parents may by agreement with the step-parent provide for the step-parent to
have parental responsibility for the child; or
(b) the court may, on
the application of the step-parent, order that the step-parent shall have
parental responsibility for the child.
(2) An agreement under subsection (1)(a) is also
a “parental responsibility
agreement”, and section 4(2) applies in relation to such agreements as
it applies in relation to parental responsibility agreements under section 4.
(3) A parental responsibility agreement under
subsection (1)(a), or an order under subsection
(1)(b), may only be brought to an end by an order of the court made on the
application—
(a) of any person who
has parental responsibility for the child; or
(b) with the leave of
the court, of the child himself.
(4) The court may only grant leave under
subsection (3)(b) if it is satisfied that the child
has sufficient understanding to make the proposed application.]
(1) Where an application with respect to a child
is made to the court by any individual, the court may by order appoint that
individual to be the child’s guardian if—
(a) the child has no
parent with parental responsibility for him; or
(b) a residence order
has been made with respect to the child in favour of
a parent, guardian or
special guardian] of his who has died
while the order was in force; or
(c) paragraph (b) does
not apply, and the child’s only or last surviving special guardian dies.]
(2) The power conferred by subsection (1) may
also be exercised in any family proceedings if the court considers that the
order should be made even though no application has been made for it.
(3) A parent who has parental responsibility for
his child may appoint another individual to be the child’s guardian in the
event of his death.
(4) A guardian of a child may appoint another
individual to take his place as the child’s guardian in the event of his death; and a special guardian of a child may appoint another
individual to be the child’s guardian in the event of his death].
(5) An appointment under subsection (3) or (4)
shall not have effect unless it is made in writing, is dated and is signed by
the person making the appointment or—
(a) in the case of an appointment made by a will
which is not signed by the testator, is signed at the direction of the testator
in accordance with the requirements of section 9 of the Wills Act 1837; or
(b) in any other case,
is signed at the direction of the person making the appointment, in his
presence and in the presence of two witnesses who each attest the signature.
(6) A person appointed as a child’s guardian
under this section shall have parental responsibility for the child concerned.
(7) Where—
(a) on the death of any
person making an appointment under subsection (3) or (4), the child concerned
has no parent with parental responsibility for him; or
(b) immediately before the death of any person
making such an appointment, a residence order in his favour
was in force with respect to the child or he was the child’s only (or last surviving) special guardian],
the appointment shall take effect on the death of that
person.
(8) Where, on the death of any person making an
appointment under subsection (3) or (4)—
(a) the child concerned
has a parent with parental responsibility for him; and
(b) subsection (7)(b)
does not apply,
the appointment shall take effect when the child no longer
has a parent who has parental responsibility for him.
(9) Subsections (1) and (7) do not apply if the
residence order referred to in paragraph (b) of those subsections was also made
in favour of a surviving parent of the child.
(10) Nothing in this section shall be taken to
prevent an appointment under subsection (3) or (4) being made by two or more
persons acting jointly.
(11) Subject to any provision made by rules of
court, no court shall exercise the High Court’s inherent jurisdiction to
appoint a guardian of the estate of any child.
(12) Where rules of court are made under subsection
(11) they may prescribe the circumstances in which, and conditions subject to
which, an appointment of such a guardian may be made.
(13) A guardian of a child may only be appointed in
accordance with the provisions of this section.
(1) An appointment under section 5(3) or (4)
revokes an earlier such appointment (including one made in an unrevoked will or
codicil) made by the same person in respect of the same child, unless it is
clear (whether as the result of an express provision in the later appointment
or by any necessary implication) that the purpose of the later appointment is
to appoint an additional guardian.
(2) An appointment under section 5(3) or (4)
(including one made in an unrevoked will or codicil) is revoked if the person
who made the appointment revokes it by a written and dated instrument which is
signed—
(a) by him; or
(b) at his direction, in
his presence and in the presence of two witnesses who each attest the
signature.
(3) An appointment under section 5(3) or (4)
(other than one made in a will or codicil) is revoked if, with the intention of
revoking the appointment, the person who made it—
(a) destroys the
instrument by which it was made; or
(b) has some other
person destroy that instrument in his presence.
(3A) An appointment under
section 5(3) or (4) (including one made in an unrevoked will or codicil) is
revoked if the person appointed is the spouse of the person who made the
appointment and either—
(a) a decree of a court
of civil jurisdiction in England and Wales dissolves or annuls the marriage, or
(b) the marriage is
dissolved or annulled and the divorce or annulment is entitled to recognition
in England and Wales by virtue of Part II of the Family Law Act 1986,
unless a contrary intention appears by the appointment.
(3B) An appointment under section 5(3) or (4)(including one made in an unrevoked will or codicil) is
revoked if the person appointed is the civil partner of the person who made the
appointment and either—
(a) an order of a court
of civil jurisdiction in England and Wales dissolves or annuls the civil
partnership, or
(b) the civil
partnership is dissolved or annulled and the dissolution or annulment is
entitled to recognition in England and Wales by virtue of Chapter 3 of Part 5
of the Civil Partnership Act 2004,
unless a contrary intention appears by the appointment.
(4) For the avoidance of doubt, an appointment
under section 5(3) or (4) made in a will or codicil is revoked if the will or
codicil is revoked.
(5) A person who is appointed as a guardian
under section 5(3) or (4) may disclaim his appointment by an instrument in
writing signed by him and made within a reasonable time of his first knowing
that the appointment has taken effect.
(6) Where regulations are made by the Lord
Chancellor prescribing the manner in which such
disclaimers must be recorded, no such disclaimer shall have effect unless it is
recorded in the prescribed manner.
(7) Any appointment of a guardian under section
5 may be brought to an end at any time by order of the court—
(a) on the application
of any person who has parental responsibility for the child;
(b) on the application
of the child concerned, with leave of the court; or
(c) in any family
proceedings, if the court considers that it should be brought to an end even
though no application has been made.
(1) A court considering any question with
respect to a child under this Act may—
(a) ask an officer of the Service or a Welsh family proceedings
officer; or
(b) ask a local
authority to arrange for—
(i) an officer of the
authority; or
(ii) such other person
(other than an officer of the Service or a Welsh family
proceedings officer) as the authority considers appropriate,
to report to the court on such matters relating to the
welfare of that child as are required to be dealt with in the report.
(2) The Lord Chancellor may, after consulting the Lord Chief Justice, make regulations specifying matters which, unless the
court orders otherwise, must be dealt with in any report under this section.
(3) The report may be made in writing, or
orally, as the court requires.
(4) Regardless of any enactment or rule of law
which would otherwise prevent it from doing so, the court may take account of—
(a) any statement
contained in the report; and
(b) any evidence given
in respect of the matters referred to in the report,
in so far as the statement or evidence is, in the opinion
of the court, relevant to the question which it is considering.
(5) It shall be the duty of the authority or officer of the Service or a Welsh family proceedings
officer] to comply with any
request for a report under this section.
(6) The Lord
Chief Justice may nominate a judicial office holder (as defined in section
109(4) of the Constitutional Reform Act 2005) to exercise his functions under
subsection (2).
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