Children Act 1989

SCHEDULE 13 — Consequential Amendments

The Wills Act 1837 (c. 26)

1

In section 1 of the Wills Act 1837 (interpretation), in the definition of “will", for the words “and also to a disposition by will and testament or devise of the custody and tuition of any child" there shall be substituted “ and also to an appointment by will of a guardian of a child" ”.

The Children and Young Persons Act 1933 (c. 12)

2

In section 1(1) of the Children and Young Persons Act 1933 (cruelty to persons under sixteen) for the words “has the custody, charge or care of" there shall be substituted “ has responsibility for" ”.

3

In the following sections of that Act—

• (a) 3(1) (allowing persons under sixteen to be in brothels);

• (b) 4(1) and (2) (causing or allowing persons under sixteen to be used for begging);

• (c) 11 (exposing children under twelve to risk of burning); and

• (d) 25(1) (restrictions on persons under eighteen going abroad for the purpose of performing for profit),

for the words “the custody, charge or care of" there shall, in each case, be substituted “ responsibility for" ”.

4

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5

For section 17 of that Act (interpretation of Part I) there shall be substituted the following section—

(17) (1) For the purposes of this Part of this Act, the following shall be presumed to have responsibility for a child or young person— (a) any person who— (i) has parental responsibility for him (within the meaning of the Children Act 1989); or (ii) is otherwise legally liable to maintain him; and (b) any person who has care of him. (2) A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.

6

• (1) In section 34 of that Act (attendance at court of parent of child or young person charged with an offence etc.), in subsection (1) after the word “offence" there shall be inserted “ is the subject of an application for a care or supervision order under Part IV of the Children Act 1989" ”.

• (2) In subsection (7) of that section after the words “Children and Young Persons Act 1969" there shall be inserted “ or Part IV of the Children Act 1989" ”.

• (3) After subsection (7) of that section there shall be inserted—

(7A) If it appears that at the time of his arrest the child or young person is being provided with accommodation by or on behalf of a local authority under section 20 of the Children Act 1989, the local authority shall also be informed as described in subsection (3) above as soon as it is reasonably practicable to do so.

7

In section 107(1) of that Act (interpretation)—

• (a) in the definition of “guardian", for the words “charge of or control over" there shall be substituted “ care of" ”;

• (b) for the definition of legal guardian there shall be substituted—

• “legal guardian”, in relation to a child or young person, means a guardian of a child as defined in the Children Act 1989

The Education Act 1944 (c. 31)

8

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9

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10

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The National Assistance Act 1948 (c. 29)

11

• (1) In section 21(1)(a) of the National Assistance Act 1948 (persons for whom local authority is to provide residential accommodation) after the word “persons" there shall be inserted “ aged eighteen or over" ”.

• (2) In section 29(1) of that Act (welfare arrangements for blind, deaf, dumb and crippled persons) after the words “that is to say persons" and after the words “and other persons" there shall, in each case, be inserted “ aged eighteen or over" ”.

The Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)

12

For section 2(1)(d) of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (cases in which leave of the appropriate court is required before enforcing certain orders for the payment of money), there shall be substituted—

(d) an order for alimony, maintenance or other payment made under sections 21 to 33 of the Matrimonial Causes Act 1973 or made, or having effect as if made, under Schedule 1 to the Children Act 1989.

The Mines and Quarries Act 1954 (c. 70)

13

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The Administration of Justice Act 1960 (c. 65)

14

In section 12 of the Administration of Justice Act 1960 (publication of information relating to proceedings in private), in subsection (1) for paragraph (a) there shall be substituted—

(a) where the proceedings— (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

The Factories Act 1961 (c. 34)

15

In section 176(1) of the Factories Act 1961 (interpretation), in the definition of “parent", for the words from “or guardian" to first “young person" there shall be substituted “ of a child or young person or any person who is not a parent of his but who has parental responsibility for him (within the meaning of the Children Act 1989)" ”.

The Criminal Justice Act 1967 (c. 80)

16

In section 67(1A)(c) of the Criminal Justice Act 1967 (computation of sentences of imprisonment passed in England and Wales) for the words “in the care of a local authority" there shall be substituted “ remanded to local authority accommodation." ”

The Health Services and Public Health Act 1968 (c. 46)

17

• (1) In section 64(3)(a) of the Health Services and Public Health Act 1968 (meaning of “relevant enactments” in relation to power of Minister of Health or Secretary of State to provide financial assistance), for sub-paragraph (xix) inserted by paragraph 19 of Schedule 5 to the Child Care Act 1980 there shall be substituted—

(xx) the Children Act 1989.

• (2) In section 65(3)(b) of that Act (meaning of “relevant enactments” in relation to power of local authority to provide financial and other assistance), for sub-paragraph (xx) inserted by paragraph 20 of Schedule 5 to the Child Care Act 1980 there shall be substituted—

(xxi) the Children Act 1989.

The Social Work (Scotland) Act 1968 (c. 49)

18

In section 2(2) of the Social Work (Scotland) Act 1968 (matters referred to social work committee) after paragraph (j) there shall be inserted—

(k) section 19 and Part X of the Children Act 1989,

19

In section 5(2)(c) of that Act (power of Secretary of State to make regulations) for the words “and (j)" there shall be substituted “ to (k)" ”.

20

In section 21(3) of that Act (mode of provision of accommodation and maintenance) for the words “section 21 of the Child Care Act 1980" there shall be substituted “ section 23 of the Children Act 1989" ”.

21

In section 74(6) of that Act (parent of child in residential establishment moving to England or Wales) for the words from “Children and Young Persons Act 1969" to the end there shall be substituted “ Children Act 1989, but as if section 31(8) were omitted" ”.

22

In section 75(2) of that Act (parent of child subject to care order etc. moving to Scotland), for the words “Children and Young Persons Act 1969" there shall be substituted “ Children Act 1989" ”.

23

In section 86(3) of that Act (meaning of ordinary residence for purpose of adjustments between authority providing accommodation and authority of area of residence), the words “the Child Care Act 1980 or” shall be omitted and after the words “education authority" there shall be inserted “ or placed with local authority foster parents under the Children Act 1989" ”.

The Civil Evidence Act 1968 (c. 64)

24

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The Administration of Justice Act 1970 (c. 31)

25

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The Local Authority Social Services Act 1970 (c. 42)

26

• (1) In Schedule 1 to the Local Authority Social Services Act 1970 (enactments conferring functions assigned to social service committee)—

• (a) in the entry relating to the Mental Health Act 1959, for the words “sections 8 and 9" there shall be substituted “ section 8" ”; and

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) At the end of that Schedule there shall be added—

Children Act 1989.	Welfare reports.
The whole Act, in so far as it confers functions on a local authority within the meaning of that Act.	Consent to application for residence order in respect of child in care.
	Family assistance orders.
	Functions under Part III of the Act (local authority support for children and families).
	Care and supervision.
	Protection of children.
	Functions in relation to community homes, voluntary homes and voluntary organisations, registered children’s homes, private arrangements for fostering children, child minding and day care for young children.
	Inspection of children’s homes on behalf of Secretary of State.
	Research and returns of information.
	Functions in relation to children accommodated by health authorities and local education authorities or in residential care, nursing or mental nursing homes or in independent schools.

The Chronically Sick and Disabled Persons Act 1970 (c. 44)

27

After section 28 of the Chronically Sick and Disabled Persons Act 1970 there shall be inserted—

(28A) This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies.

The Courts Act 1971 (c. 23)

28

In Part I of Schedule 9 to the Courts Act 1971 (substitution of references to Crown Court), in the entry relating to the Children and Young Persons Act 1969, for the words “Sections 2(12), 3(8), 16(8), 21(4)(5)" there shall be substituted “ Section 16(8)." ”.

The Attachment of Earnings Act 1971 (c. 32)

29

In Schedule 1 to the Attachment of Earnings Act 1971 (maintenance orders to which that Act applies), in paragraph 7, for the words “section 47 or 51 of the Child Care Act 1980" there shall be substituted “ paragraph 23 of Schedule 2 to the Children Act 1989" ”.

The Tribunals and Inquiries Act 1971 (c. 62)

30

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The Local Government Act 1972 (c. 70)

31

• (1) In section 102(1) of the Local Government Act 1972 (appointment of committees) for the words “section 31 of the Child Care Act 1980" there shall be substituted “ section 53 of the Children Act 1989" ”.

• (2) In Schedule 12A to that Act (access to information: exempt information), in Part III (interpretation), in paragraph 1(1)(b) for the words “section 20 of the Children and Young Persons Act 1969" there shall be substituted “ section 31 of the Children Act 1989" ”.

The Employment of Children Act 1973 (c. 24)

32

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The Domicile and Matrimonial Proceedings Act 1973 (c. 45)

33

• (1) In Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (proceedings in divorce etc. stayed by reference to proceedings in other jurisdiction), paragraph 11(1) shall be amended as follows—

• (a) at the end of the definition of “lump sum" there shall be added “or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(c) of that Schedule";

• (b) in the definition of “relevant order", at the end of paragraph (b), there shall be added “or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule";

• (c) in paragraph (c) of that definition, after the word “children)" there shall be inserted “or a section 8 order under the Children Act 1989"; and

• (d) in paragraph (d) of that definition for the words “the custody, care or control" there shall be substituted “care".

• (2) In paragraph 11(3) of that Schedule—

• (a) the word “four” shall be omitted; and

• (b) for the words “the custody of a child and the education of a child" there shall be substituted “or any provision which could be made by a section 8 order under the Children Act 1989".

The Powers of Criminal Courts Act 1973 (c. 62)

34

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The Rehabilitation of Offenders Act 1974 (c. 53)

35

• (1) Section 7(2) of the Rehabilitation of Offenders Act 1974 (limitations on rehabilitation under the Act) shall be amended as follows.

• (2) For paragraph (c) there shall be substituted—

(c) in any proceedings relating to adoption, the marriage of any minor, the exercise of the inherent jurisdiction of the High Court with respect to minors or the provision by any person of accommodation, care or schooling for minors; (cc) in any proceedings brought under the Children Act 1989;

• (3) For paragraph (d) there shall be substituted—

(d) in any proceedings relating to the variation or discharge of a supervision order under the Children and Young Persons Act 1969, or on appeal from any such proceedings

The Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22)

36

For section 8 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (orders for the custody of children) there shall be substituted—

(8) Where an application is made by a party to a marriage for an order under section 2, 6 or 7 of this Act, then, if there is a child of the family who is under the age of eighteen, the court shall not dismiss or make a final order on the application until it has decided whether to exercise any of its powers under the Children Act 1989 with respect to the child.

37

In section 19(3A)(b) (interim orders) for the words “subsections (2) and" there shall be substituted “ subsection" ”.

38

For section 20(12) of that Act (variation and revocation of orders for periodical payments) there shall be substituted—

(12) An application under this section may be made— (a) where it is for the variation or revocation of an order under section 2, 6, 7 or 19 of this Act for periodical payments, by either party to the marriage in question; and (b) where it is for the variation of an order under section 2(1)(c), 6 or 7 of this Act for periodical payments to or in respect of a child, also by the child himself, if he has attained the age of sixteen.

39

• (1) For section 20A of that Act (revival of orders for periodical payments) there shall be substituted—

(20A) (1) Where an order made by a magistrates’ court under this Part of this Act for the making of periodical payments to or in respect of a child (other than an interim maintenance order) ceases to have effect— (a) on the date on which the child attains the age of sixteen, or (b) at any time after that date but before or on the date on which he attains the age of eighteen, the child may apply to the court which made the order for an order for its revival. (2) If on such an application it appears to the court that— (a) the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or (b) there are special circumstances which justify the making of an order under this subsection, the court shall have power by order to revive the order from such date as the court may specify, not being earlier than the date of the making of the application. (3) Any order revived under this section may be varied or revoked under section 20 in the same way as it could have been varied or revoked had it continued in being.

40

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41

• (1) In section 25 of that Act (effect on certain orders of parties living together), in subsection (1)(a) for the words “6 or 11(2)" there shall be substituted “ or 6" ”.

• (2) In subsection (2) of that section—

• (a) in paragraph (a) for the words “6 or 11(2)" there shall be substituted “ or 6" ”; and

• (b) after paragraph (a) there shall be inserted “ or" ”.

42

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43

In section 88(1) of that Act (interpretation)—

• (a) in the definition of “child", for the words from “an illegitimate" to the end there shall be substituted “ a child whose father and mother were not married to each other at the time of his birth" ”; and

• (b) in the definition of “child of the family", for the words “being boarded-out with those parties" there shall be substituted “ placed with those parties as foster parents" ”.

The Magistrates’ Courts Act 1980 (c. 43)

44

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) For section 62(5) of that Act (payments to children) there shall be substituted—

(5) In this section references to the person with whom a child has his home— (a) in the case of any child who is being looked after by a local authority (within the meaning of section 22 of the Children Act 1989), are references to that local authority; and (b) in any other case, are references to the person who, disregarding any absence of the child at a hospital or boarding school and any other temporary absence, has care of the child.

The Senior Courts Act 1981 (c. 54)

45

• (1) In section 18 of the Senior Courts Act 1981 (restrictions on appeals to Court of Appeal)—

• (a) in subsection (1)(h)(i), for the word “custody" there shall be substituted “ residence" ”; and

• (b) in subsection (1)(h)(ii) for the words “access to", in both places, there shall be substituted “ contact with" ”.

• (2) In section 41 of that Act (wards of court), the following subsection shall be inserted after subsection (2)—

(2A) Subsection (2) does not apply with respect to a child who is the subject of a care order (as defined by section 105 of the Children Act 1989).

• (3) In Schedule 1 to that Act (distribution of business in High Court), for paragraph 3(b)(ii) there shall be substituted—

(ii) the exercise of the inherent jurisdiction of the High Court with respect to minors, the maintenance of minors and any proceedings under the Children Act 1989, except proceedings solely for the appointment of a guardian of a minor’s estate;

The Armed Forces Act 1981 (c. 55)

46

In section 14 of the Armed Forces Act 1981 (temporary removal to, and detention in, place of safety abroad or in the United Kingdom of service children in need of care and control), in subsection (9A) for the words “the Children and Young Persons Act 1933, the Children and Young Persons Act 1969" there shall be substituted “ the Children Act 1989" ”.

The Civil Jurisdiction and Judgments Act 1982 (c. 27)

47

In paragraph 5(a) of Schedule 5 to the Civil Jurisdiction and Judgments Act 1982 (maintenance and similar payments excluded from Schedule 4 to that Act) for the words “section 47 or 51 of the Child Care Act 1980" there shall be substituted “ paragraph 23 of Schedule 2 to the Children Act 1989" ”.

The Mental Health Act 1983 (c. 20)

48

• (1) For section 27 of the Mental Health Act 1983 (children and young persons in care of local authority) there shall be substituted the following section—

(27) Where— (a) a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or (b) the rights and powers of a parent of a patient who is a child or young person are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968, the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife (if any).

• (2) Section 28 of that Act (nearest relative of minor under guardianship, etc.) is amended as mentioned in sub-paragraphs (3) and (4).

• (3) For subsection (1) there shall be substituted—

(1) Where— (a) a guardian has been appointed for a person who has not attained the age of eighteen years; or (b) a residence order (as defined by section 8 of the Children Act 1989) is in force with respect to such a person, the guardian (or guardians, where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative.

• (4) For subsection (3) there shall be substituted—

(3) In this section “guardian” does not include a guardian under this Part of this Act.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Registered Homes Act 1984 (c. 23)

49

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The Mental Health (Scotland) Act 1984 (c. 36)

50

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The Matrimonial and Family Proceedings Act 1984 (c. 42)

51

In section 38(2)(b) of the Matrimonial and Family Proceedings Act 1984 (transfer of family proceedings from High Court to county court) after the words “a ward of court" there shall be inserted “ or any other proceedings which relate to the exercise of the inherent jurisdiction of the High Court with respect to minors" ”.

The Police and Criminal Evidence Act 1984 (c. 60)

52

In section 37(14) of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge) after the words “Children and Young Persons Act 1969" there shall be inserted “ or in Part IV of the Children Act 1989" ”.

53

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) After that subsection there shall be inserted—

(6A) In this section “local authority accommodation” means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989). (6B) Where an arrested juvenile is moved to local authority accommodation under subsection (6) above, it shall be lawful for any person acting on behalf of the authority to detain him.

• (3) In subsection (8) of that section for the words “Children and Young Persons Act 1969" there shall be substituted “ Children Act 1989" ”.

54

In section 39(4) of that Act (responsibilities in relation to persons detained) for the words “transferred to the care of a local authority in pursuance of arrangements made" there shall be substituted “ moved to local authority accommodation" ”.

55

In Schedule 2 to that Act (preserved powers of arrest) in the entry relating to the Children and Young Persons Act 1969 for the words “Sections 28(2) and" there shall be substituted “ Section" ”.

The Surrogacy Arrangements Act 1985 (c. 49)

56

In section 1(2)(b) of the Surrogacy Arrangements Act 1985 (meaning of “surrogate mother", etc.) for the words “the parental rights being exercised" there shall be substituted “ parental responsibility being met" ”.

The Child Abduction and Custody Act 1985 (c. 60)

57

• (1) In section 9(a) and 20(2)(a) of the Child Abduction and Custody Act 1985 (orders with respect to which court’s powers suspended), for the words “any other order under section 1(2) of the Children and Young Persons Act 1969" there shall be substituted “ a supervision order under section 31 of the Children Act 1989" ”.

• (2) At the end of section 27 of that Act (interpretation), there shall be added—

(4) In this Act a decision relating to rights of access in England and Wales means a decision as to the contact which a child may, or may not, have with any person.

• (3) In Part I of Schedule 3 to that Act (orders in England and Wales which are custody orders for the purposes of the Act), for paragraph 1 there shall be substituted—

(1) The following are the orders referred to in section 27(1) of this Act— (a) a care order under the Children Act 1989 (as defined by section 31(11) of that Act, read with section 105(1) and Schedule 14); (b) a residence order (as defined by section 8 of the Act of 1989); and (c) any order made by a court in England and Wales under any of the following enactments— (i) section 9(1), 10(1)(a) or 11(a) of the Guardianship of Minors Act 1971; (ii) section 42(1) or (2) or 43(1) of the Matrimonial Causes Act 1973; (iii) section 2(2)(b), 4(b) or (5) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975; (iv) section 8(2)(a), 10(1) or 19(1)(ii) of the Domestic Proceedings and Magistrates Courts Act 1978; (v) section 26(1)(b) of the Adoption Act 1976.

The Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

58

In section 1(3) of the Disabled Persons (Services, Consultation and Representation) Act 1986 (circumstances in which regulations may provide for the appointment of authorised representatives of disabled persons)—

• (a) in paragraph (a), for the words “parent or guardian of a disabled person under the age of sixteen" there shall be substituted—

(i) the parent of a disabled person under the age of sixteen, or (ii) any other person who is not a parent of his but who has parental responsibility for him

; and

• (b) in paragraph (b), for the words “in the care of" there shall be substituted “ looked after by" ”.

59

• (1) Section 2 of that Act (circumstances in which authorised representative has right to visit etc. disabled person) shall be amended as follows.

• (2) In subsection (3)(a) for the words from second “the" to “by" there shall be substituted “ for the words “if so requested by the disabled person" there shall be substituted “if so requested by any person mentioned in section 1(3)(a)(i) or (ii)">." ”

• (3) In subsection (5) after paragraph (b) there shall be inserted—

(bb) in accommodation provided by or on behalf of a local authority under Part III of the Children Act 1989, or

• (4) After paragraph (c) of subsection (5) there shall be inserted—

(cc) in accommodation provided by a voluntary organisation in accordance with arrangements made by a local authority under section 17 of the Children Act 1989, or

60

In section 5(7)(b) of that Act (disabled persons leaving special education) for the word “guardian" there shall be substituted “ other person who is not a parent of his but who has parental responsibility for him" ”.

61

• (1) In section 16 of that Act (interpretation) in the definition of “disabled person", in paragraph (a) for the words from “means" to “applies" there shall be substituted

means— (i) in the case of a person aged eighteen or over, a person to whom section 29 of the 1948 Act applies, and (ii) in the case of a person under the age of eighteen, a person who is disabled within the meaning of Part III of the Children Act 1989

• (2) After the definition of “parent" in that section there shall be inserted—

“parental responsibility” has the same meaning as in the Children Act 1989.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Family Law Act 1986 (c. 55)

62

• (1) The Family Law Act 1986 shall be amended as follows.

• (2) Subject to paragraphs 63 to 71, in Part I—

• (a) for the words “custody order", in each place where they occur, there shall be substituted “ Part I order" ”;

• (b) for the words “proceedings with respect to the custody of", in each place where they occur, there shall be substituted “ Part I proceedings with respect to" ”; and

• (c) for the words “matters relating to the custody of", in each place where they occur, there shall be substituted “ Part I matters relating to" ”.

• (3) For section 42(7) (general interpretation of Part I) there shall be substituted—

(7) In this Part— (a) references to Part I proceedings in respect of a child are references to any proceedings for a Part I order or an order corresponding to a Part I order and include, in relation to proceedings outside the United Kingdom, references to proceedings before a tribunal or other authority having power under the law having effect there to determine Part I matters; and (b) references to Part I matters are references to matters that might be determined by a Part I order or an order corresponding to a Part I order.

63

• (1) In section 1 (orders to which Part I of the Act of 1986 applies), in subsection (1)—

• (a) for paragraph (a) there shall be substituted—

(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order

; and

• (b) for paragraph (d) there shall be substituted the following paragraphs—

(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children— (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order; (e) an order made by the High Court in Northern Ireland in the exercise of its jurisdiction relating to wardship— (i) so far as it gives care and control of a child to any person or provides for the education of or access to a child; but (ii) excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in the Department of Health and Social Services or a Health and Social Services Board.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) For subsections (3) to (5) of that section there shall be substituted—

(3) In this Part, “Part I order”— (a) includes any order which would have been a custody order by virtue of this section in any form in which it was in force at any time before its amendment by the Children Act 1989; and (b) (subject to sections 32 and 40 of this Act) excludes any order which would have been excluded from being a custody order by virtue of this section in any such form.

64

For section 2 there shall be substituted the following sections—

(2) (1) A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order with respect to a child in or in connection with matrimonial proceedings in England and Wales unless the condition in section 2A of this Act is satisfied. (2) A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order in a non-matrimonial case (that is to say, where the condition in section 2A of this Act is not satisfied) unless the condition in section 3 of this Act is satisfied. (3) A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless— (a) the condition in section 3 of this Act is satisfied, or (b) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection. (2A) (1) The condition referred to in section 2(1) of this Act is that the matrimonial proceedings are proceedings in respect of the marriage of the parents of the child concerned and— (a) the proceedings— (i) are proceedings for divorce or nullity of marriage, and (ii) are continuing; (b) the proceedings— (i) are proceedings for judicial separation, (ii) are continuing, and the jurisdiction of the court is not excluded by subsection (2) below; or (c) the proceedings have been dismissed after the beginning of the trial but— (i) the section 1(1)(a) order is being made forthwith, or (ii) the application for the order was made on or before the dismissal. (2) For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if, after the grant of a decree of judicial separation, on the relevant date, proceedings for divorce or nullity in respect of the marriage are continuing in Scotland or Northern Ireland. (3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made— (a) an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or (b) an order under section 14(2) or 22(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in England and Wales with respect to the child concerned. (4) Where a court— (a) has jurisdiction to make a section 1(1)(a) order in or in connection with matrimonial proceedings, but (b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales, the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court in or in connection with those proceedings.

65

• (1) In section 3 (habitual residence or presence of child concerned) in subsection (1) for “section 2" there shall be substituted “section 2(2)".

• (2) In subsection (2) of that section for the words “proceedings for divorce, nullity or judicial separation" there shall be substituted “matrimonial proceedings".

66

• (1) In section 6 (duration and variation of Part I orders), for subsection (3) there shall be substituted the following subsections—

(3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings are continuing in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned. (3A) Subsection (3) above shall not apply if— (a) the Part I order was made in or in connection with proceedings for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; and (b) those proceedings are continuing. (3B) Subsection (3) above shall not apply if— (a) the Part I order was made in or in connection with proceedings for judicial separation in England and Wales; (b) those proceedings are continuing; and (c) the decree of judicial separation has not yet been granted.

• (2) In subsection (5) of that section for the words from “variation of" to “if the ward" there shall be substituted “ variation of a section 1(1)(d) order if the child concerned" ”.

• (3) For subsections (6) and (7) of that section there shall be substituted the following subsections—

(6) Subsection (7) below applies where a Part I order which is— (a) a residence order (within the meaning of the Children Act 1989) in favour of a person with respect to a child, (b) an order made in the exercise of the High Court’s inherent jurisdiction with respect to children by virtue of which a person has care of a child, or (c) an order— (i) of a kind mentioned in section 1(3)(a) of this Act, (ii) under which a person is entitled to the actual possession of a child, ceases to have effect in relation to that person by virtue of subsection (1) above. (7) Where this subsection applies, any family assistance order made under section 16 of the Children Act 1989 with respect to the child shall also cease to have effect. (8) For the purposes of subsection (7) above the reference to a family assistance order under section 16 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under— (a) section 7(4) of the Family Law Reform Act 1969, (b) section 44 of the Matrimonial Causes Act 1973, (c) section 2(2)(a) of the Guardianship Act 1973, (d) section 34(5) or 36(3)(b) of the Children Act 1975, or (e) section 9 of the Domestic Proceedings and Magistrates’ Courts Act 1978; but this subsection shall cease to have effect once all such orders for the supervision of children have ceased to have effect in accordance with Schedule 14 to the Children Act 1989.

67

For section 7 (interpretation of Chapter II) there shall be substituted—

(7) In this Chapter— (a) “child” means a person who has not attained the age of eighteen; (b) “matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation; (c) “the relevant date” means, in relation to the making or variation of an order— (i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and (ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order; and (d) “section 1(1)(a) order” and “section 1(1)(d) order” mean orders falling within section 1(1)(a) and (d) of this Act respectively.

68

In each of the following sections—

• (a) section 11(2)(a) (provisions supplementary to sections 9 and 10),

• (b) section 13(5)(a) (jurisdiction ancillary to matrimonial proceedings),

• (c) section 20(3)(a) (habitual residence or presence of child),

• (d) section 21(4)(a) (jurisdiction in divorce proceedings, etc.), and

• (e) section 23(4)(a) (duration and variation of custody orders),

for “4(5)" there shall be substituted “ 2A(4)" ”.

69

In each of the following sections—

• (a) section 19(2) (jurisdiction in cases other than divorce, etc.),

• (b) section 20(6) (habitual residence or presence of child), and

• (c) section 23(5) (duration and variation of custody orders),

for “section 1(1)(d)" there shall be substituted “ section 1(1)(e)" ”.

70

In section 34(3) (power to order recovery of child) for paragraph (a) there shall be substituted—

(a) section 14 of the Children Act 1989

71

• (1) In section 42 (general interpretation of Part I), in subsection (4)(a) for the words “has been boarded out with those parties" there shall be substituted “ is placed with those parties as foster parents" ”.

• (2) In subsection (6) of that section, in paragraph (a) after the word “person" there shall be inserted “ to be allowed contact with or" ”.

The Local Government Act 1988 (c. 9)

72

In Schedule 1 to the Local Government Act 1988 (competition) at the end of paragraph 2(4) (cleaning of buildings: buildings to which competition provisions do not apply) for paragraph (c) there shall be substituted—

(c) section 53 of the Children Act 1989.

Amendments of local Acts

73

• (1) Section 16 of the Greater London Council (General Powers) Act 1981 (exemption from provisions of Part IV of the Act of certain premises) shall be amended as follows.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In paragraph (i), for the words “section 8 of the Foster Children Act 1980" there shall be substituted “ section 67 of the Children Act 1989" ”.

74

• (1) Section 10(2) of the Greater London Council (General Powers) Act 1984 (exemption from provisions of Part IV of the Act of certain premises) shall be amended as follows.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In paragraph (e), for the words “section 8 of the Foster Children Act 1980" there shall be substituted “ section 67 of the Children Act 1989" ”.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 14 — Transitionals and Savings

Pending proceedings, etc.

1

• (1) Subject to sub-paragraphs (1A) and (4), nothing in any provision of this Act (other than the repeals mentioned in sub-paragraph (2)) shall affect any proceedings which are pending immediately before the commencement of that provision.

• (1A) Proceedings pursuant to section 7(2) of the Family Law Reform Act 1969 (committal of wards of court to care of local authority) or in the exercise of the High Court’s inherent jurisdiction with respect to children which are pending in relation to a child who has been placed or allowed to remain in the care of a local authority shall not be treated as pending proceedings after 13th October 1992 for the purposes of this Schedule if no final order has been made by that date pursuant to section 7(2) of the 1969 Act or in the exercise of the High Court’s inherent jurisdiction in respect of the child’s care.

• (2) The repeals are those of—

• (a) section 42(3) of the Matrimonial Causes Act 1973 (declaration by court that party to marriage unfit to have custody of children of family); and

• (b) section 38 of the Sexual Offences Act 1956 (power of court to divest person of authority over girl or boy in cases of incest).

• (3) For the purposes of the following provisions of this Schedule, any reference to an order in force immediately before the commencement of a provision of this Act shall be construed as including a reference to an order made after that commencement in proceedings pending before that commencement.

• (4) Sub-paragraph (3) is not to be read as making the order in question have effect from a date earlier than that on which it was made.

• (5) An order under section 96(3) may make such provision with respect to the application of the order in relation to proceedings which are pending when the order comes into force as the Lord Chancellor considers appropriate.

2

Where, immediately before the day on which Part IV comes into force, there was in force an order under section 3(1) of the Children and Young Persons Act 1963 (order directing a local authority to bring a child or young person before a youth court under section 1 of the Children and Young Persons Act 1969), the order shall cease to have effect on that day.

CUSTODY ORDERS, ETC.

Cessation of declarations of unfitness, etc.

3

Where, immediately before the day on which Parts I and II come into force, there was in force—

• (a) a declaration under section 42(3) of the Matrimonial Causes Act 1973 (declaration by court that party to marriage unfit to have custody of children of family); or

• (b) an order under section 38(1) of the Sexual Offences Act 1956 divesting a person of authority over a girl or boy in a case of incest;

the declaration or, as the case may be, the order shall cease to have effect on that day.

The Family Law Reform Act 1987 (c. 42)

Conversion of orders under section 4

4

Where, immediately before the day on which Parts I and II come into force, there was in force an order under section 4(1) of the Family Law Reform Act 1987 (order giving father parental rights and duties in relation to a child), then, on and after that day, the order shall be deemed to be an order under section 4 of this Act giving the father parental responsibility for the child.

Orders to which paragraphs 6 to 11 apply

5

• (1) In paragraphs 6 to 11 “an existing order” means any order which—

• (a) is in force immediately before the commencement of Parts I and II;

• (b) was made under any enactment mentioned in sub-paragraph (2);

• (c) determines all or any of the following—

• (i) who is to have custody of a child;

• (ii) who is to have care and control of a child;

• (iii) who is to have access to a child;

(iv) any matter with respect to a child’s education or upbringing; and

• (d) is not an order of a kind mentioned in paragraph 15(1).

• (2) The enactments are—

• (a) the Domestic Proceedings and Magistrates’ Courts Act 1978;

• (b) the Children Act 1975;

• (c) the Matrimonial Causes Act 1973;

• (d) the Guardianship of Minors Acts 1971 and 1973;

• (e) the Matrimonial Causes Act 1965;

• (f) the Matrimonial Proceedings (Magistrates’ Courts) Act 1960.

• (3) For the purposes of this paragraph and paragraphs 6 to 11 “custody” includes legal custody and joint as well as sole custody but does not include access.

Parental responsibility of parents

6

• (1) Where—

• (a) a child’s father and mother were married to each other at the time of his birth; and

• (b) there is an existing order with respect to the child,

each parent shall have parental responsibility for the child in accordance with section 2 as modified by sub-paragraph (3).

• (2) Where—

• (a) a child’s father and mother were not married to each other at the time of his birth; and

• (b) there is an existing order with respect to the child,

section 2 shall apply as modified by sub-paragraphs (3) and (4).

• (3) The modification is that for section 2(8) there shall be substituted—

(8) The fact that a person has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any existing order or any order made under this Act with respect to the child

• (4) The modifications are that—

• (a) for the purposes of section 2(2), where the father has custody or care and control of the child by virtue of any existing order, the court shall be deemed to have made (at the commencement of that section) an order under section 4(1) giving him parental responsibility for the child; and

• (b) where by virtue of paragraph (a) a court is deemed to have made an order under section 4(1) in favour of a father who has care and control of a child by virtue of an existing order, the court shall not bring the order under section 4(1) to an end at any time while he has care and control of the child by virtue of the order.

Persons who are not parents but who have custody or care and control

7

• (1) Where a person who is not the parent or guardian of a child has custody or care and control of him by virtue of an existing order, that person shall have parental responsibility for him so long as he continues to have that custody or care and control by virtue of the order.

• (2) Where sub-paragraph (1) applies, Parts I and II and paragraph 15 of Schedule I shall have effect as modified by this paragraph.

• (3) The modifications are that—

• (a) for section 2(8) there shall be substituted—

(8) The fact that a person has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any existing order or with any order made under this Act with respect to the child

• (b) at the end of section 10(4) there shall be inserted—

(c) any person who has custody or care and control of a child by virtue of any existing order

; and

• (c) at the end of section 34(1)(c) there shall be inserted—

(cc) where immediately before the care order was made there was an existing order by virtue of which a person had custody or care and control of the child, that person.

• (d) for paragraph 15 of Schedule I there shall be substituted—

(15) Where a child lives with a person as the result of a custodianship order within the meaning of section 33 of the Children Act 1975, a local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child so long as that person continues to have legal custody of that child by virtue of the order.

Persons who have care and control

8

• (1) Sub-paragraphs (2) to (6) apply where a person has care and control of a child by virtue of an existing order, but they shall cease to apply when that order ceases to have effect.

• (2) Section 5 shall have effect as if—

• (a) for any reference to a residence order in favour of a parent or guardian there were substituted a reference to any existing order by virtue of which the parent or guardian has care and control of the child; and

• (b) for subsection (9) there were substituted—

(9) Subsections (1) and (7) do not apply if the existing order referred to in paragraph (b) of those subsections was one by virtue of which a surviving parent of the child also had care and control of him.

• (3) Section 10 shall have effect as if for subsection (5)(c)(i) there were substituted—

(i) in any case where by virtue of an existing order any person or persons has or have care and control of the child, has the consent of that person or each of those persons

• (4) Section 20 shall have effect as if for subsection (9)(a) there were substituted “ who has care and control of the child by virtue of an existing order." ”

• (5) Section 23 shall have effect as if for subsection (4)(c) there were substituted—

(c) where the child is in care and immediately before the care order was made there was an existing order by virtue of which a person had care and control of the child, that person.

• (6) In Schedule 1, paragraphs 1(1) and 14(1) shall have effect as if for the words “in whose favour a residence order is in force with respect to the child" there were substituted “ who has been given care and control of the child by virtue of an existing order" ”.

Persons who have access

9

• (1) Sub-paragraphs (2) to (4) apply where a person has access by virtue of an existing order.

• (2) Section 10 shall have effect as if after subsection (5) there were inserted—

(5A) Any person who has access to a child by virtue of an existing order is entitled to apply for a contact order.

• (3) Section 16(2) shall have effect as if after paragraph (b) there were inserted—

(bb) any person who has access to the child by virtue of an existing order.

• (4) Sections 43(11), 44(13) and 46(10), shall have effect as if in each case after paragraph (d) there were inserted—

(dd) any person who has been given access to him by virtue of an existing order.

Enforcement of certain existing orders

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discharge of existing orders

11

• (1) The making of a residence order or a care order with respect to a child who is the subject of an existing order discharges the existing order.

• (2) Where the court makes any section 8 order (other than a residence order) with respect to a child with respect to whom any existing order is in force, the existing order shall have effect subject to the section 8 order.

• (3) The court may discharge an existing order which is in force with respect to a child—

• (a) in any family proceedings relating to the child or in which any question arises with respect to the child’s welfare; or

• (b) on the application of—

• (i) any parent or guardian of the child;

• (ii) the child himself; or

• (iii) any person named in the order.

• (4) A child may not apply for the discharge of an existing order except with the leave of the court.

• (5) The power in sub-paragraph (3) to discharge an existing order includes the power to discharge any part of the order

• (6) In considering whether to discharge an order under the power conferred by sub-paragraph (3) the court shall, if the discharge of the order is opposed by any party to the proceedings, have regard in particular to the matters mentioned in section 1(3).

GUARDIANS

Existing guardians to be guardians under this Act

12

• (1) Any appointment of a person as guardian of a child which—

• (a) was made—

• (i) under sections 3 to 5 of the Guardianship of Minors Act 1971;

• (ii) under section 38(3) of the Sexual Offences Act 1956; or

• (iii) under the High Court’s inherent jurisdiction with respect to children; and

• (b) has taken effect before the commencement of section 5,

shall (subject to sub-paragraph (2)) be deemed, on and after the commencement of section 5, to be an appointment made and having effect under that section.

• (2) Where an appointment of a person as guardian of a child has effect under section 5 by virtue of sub-paragraph (1)(a)(ii), the appointment shall not have effect for a period which is longer than any period specified in the order.

Appointment of guardian not yet in effect

13

Any appointment of a person to be a guardian of a child—

• (a) which was made as mentioned in paragraph 12(1)(a)(i); but

• (b) which, immediately before the commencement of section 5, had not taken effect,

shall take effect in accordance with section 5 (as modified, where it applies, by paragraph 8(2)).

Persons deemed to be appointed as guardians under existing wills

14

For the purposes of the Wills Act 1837 and of this Act any disposition by will and testament or devise of the custody and tuition of any child, made before the commencement of section 5 and paragraph 1 of Schedule 13, shall be deemed to be an appointment by will of a guardian of the child.

CHILDREN IN CARE

Children in compulsory care

15

• (1) Sub-paragraph (2) applies where, immediately before the day on which Part IV comes into force, a person was—

• (a) in care by virtue of—

• (i) a care order under section 1 of the Children and Young Persons Act 1969;

• (ii) a care order under section 15 of that Act, on discharging a supervision order made under section 1 of that Act; or

• (iii) an order or authorisation under section 25 or 26 of that Act;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) in care—

• (i) under section 2 of the Child Care Act 1980; or

• (ii) by virtue of paragraph 1 of Schedule 4 to that Act (which extends the meaning of a child in care under section 2 to include children in care under section 1 of the Children Act 1948),

and a child in respect of whom a resolution under section 3 of the Act of 1980 or section 2 of the Act of 1948 was in force;

• (d) a child in respect of whom a resolution had been passed under section 65 of the Child Care Act 1980;

• (e) in care by virtue of an order under—

• (i) section 2(1)(e) of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960;

• (ii) section 7(2) of the Family Law Reform Act 1969;

• (iii) section 43(1) of the Matrimonial Causes Act 1973; or

• (iv) section 2(2)(b) of the Guardianship Act 1973;

• (v) section 10 of the Domestic Proceedings and Magistrates’ Courts Act 1978,

(orders having effect for certain purposes as if the child had been received into care under section 2 of the Child Care Act 1980);

• (f) in care by virtue of an order made, on the revocation of a custodianship order, under section 36 of the Children Act 1975; . . .

• (g) in care by virtue of an order made, on the refusal of an adoption order, under section 26 of the Adoption Act 1976 or any order having effect (by virtue of paragraph 1 of Schedule 2 to that Act) as if made under that section.

; or—

• (h) in care by virtue of an order of the court made in the exercise of the High Court’s inherent jurisdiction with respect to children,

• (2) Where this sub-paragraph applies, then, on and after the day on which Part IV commences—

• (a) the order or resolution in question shall be deemed to be a care order;

• (b) the authority in whose care the person was immediately before that commencement shall be deemed to be the authority designated in that deemed care order; and

• (c) any reference to a child in the care of a local authority shall include a reference to a person who is the subject of such a deemed care order,

and the provisions of this Act shall apply accordingly, subject to paragraph 16.

Modifications

16

• (1) Sub-paragraph (2) only applies where a person who is the subject of a care order by virtue of paragraph 15(2) is a person falling within sub-paragraph (1)(a) . . . of that paragraph.

• (2) Where the person would otherwise have remained in care until reaching the age of nineteen, by virtue of—

• (a) section 20(3)(a) or 21(1) of the Children and Young Persons Act 1969; . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

this Act applies as if in section 91(12) for the word “eighteen" there were substituted “ nineteen" ”

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3A) Where in respect of a child who has been placed or allowed to remain in the care of a local authority pursuant to section 7(2) of the Family Law Reform Act 1969 or in the exercise of the High Court’s inherent jurisdiction and the child is still in the care of a local authority, proceedings have ceased by virtue of paragraph 1 (1A) to be treated as pending, paragraph 15(2) shall apply on 14th October 1992 as if the child was in care pursuant to an order as specified in paragraph 15(1)(e)(ii) or (h) as the case may be.

• (4) Sub-paragraphs (5) and (6) only applywhere a child who is the subject of a care order by virtue of paragraph 15(2) is a person falling within sub-paragraph (1)(e) to (h)of that paragraph.

• (5) Subject to sub-paragraph (6),Where a court, on making the order, or at any time thereafter, gave directions -

• (a) under section 4(4)(a) of the Guardianship Act 1973;

• (b) under section 43(5)(a) of the Matrimonial Causes Act 1973; or

• (c) in the exercise of the High Court’s inherent jurisdiction with respect to children,

as to the exercise by the authority of any powers, those directions shall , subject to the provisions of section 25 of this Act and of any regulations made under that section,continue to have effect (regardless of any conflicting provision in this Act other than section 25) until varied or discharged by a court under this sub-paragraph.

• (6) Where directions referred to in sub-paragraph (5) are to the effect that a child be placed in accommodation provided for the purpose of restricting liberty then the directions shall cease to have effect upon the expiry of the maximum period specified by regulations under section 25(2)(a) in relation to children of his description, calculated from 14th October 1991.

Cessation of wardship where ward in care

16A

• (-) Where a child who is a ward of court is in care by virtue of—

• (a) an order under section 7(2) of the Family Law Reform Act 1969; or

• (b) an order made in the exercise of the High Court’s inherent jurisdication with respect to children,

he shall, on the day on which Part IV commences, cease to be a ward of court.

• (2) Where immediately before the day on which Part IV commences a child was in the care of a local authority and as a result of an order—

• (a) pursuant to section 7(2) of the Family Law Reform Act 1969; or

• (b) made in the exercise of the High Court’s inherent jurisdiction with respect to children,

continued to be in the care of a local authority and was made a ward of court, he shall on the day on which Part IV commences, cease to be a ward of court.

• (3) Sub-paragraphs (1) and (2) do not apply in proceedings which are pending.

Children placed with parent etc. while in compulsory care

17

• (1) This paragraph applies where a child is deemed by paragraph 15 to be in the care of a local authority under an order or resolution which is deemed by that paragraph to be a care order.

• (2) If, immediately before the day on which Part III comes into force, the child was allowed to be under the charge and control of—

• (a) a parent or guardian under section 21(2) of the Child Care Act 1980; or

• (b) a person who, before the child was in the authority’s care, had care and control of the child by virtue of an order falling within paragraph 5,

on and after that day the provision made by and under section 23(5) shall apply as if the child had been placed with the person in question in accordance with that provision.

Orders for access to children in compulsory care

18

• (1) This paragraph applies to any access order—

• (a) made under section 12C of the Child Care Act 1980 (access orders with respect to children in care of local authorities); and

• (b) in force immediately before the commencement of Part IV.

• (2) On and after the commencement of Part IV, the access order shall have effect as an order made under section 34 in favour of the person named in the order.

18A

• (1) This paragraph applies to any decision of a local authority to terminate arrangements for access or to refuse to make such arrangements—

• (a) of which notice has been given under, and in accordance with, section 12B of the Child Care Act 1980 (termination of access); and

• (b) which is in force immediately before the commencement of Part IV.

• (2) On and after the commencement of Part IV, a decision to which this paragraph applies shall have effect as a court order made under section 34(4) authorising the local authority to refuse to allow contact between the child and the person to whom notice was given under section 12B of the Child Care Act 1980.

19

• (1) This paragraph applies where, immediately before the commencement of Part IV, an access order made under section 12C of the Act of 1980 was suspended by virtue of an order made under section 12E of that Act (suspension of access orders in emergencies).

• (2) The suspending order shall continue to have effect as if this Act had not been passed.

• (3) If—

• (a) before the commencement of Part IV; and

• (b) during the period for which the operation of the access order is suspended,

the local authority concerned made an application for its variation or discharge to an appropriate youth court, its operation shall be suspended until the date on which the application to vary or discharge it is determined or abandoned.

Children in voluntary care

20

• (1) This paragraph applies where, immediately before the day on which Part III comes into force—

• (a) a child was in the care of a local authority—

• (i) under section 2(1) of the Child Care Act 1980; or

• (ii) by virtue of paragraph 1 of Schedule 4 to that Act (which extends the meaning of references to children in care under section 2 to include references to children in care under section 1 of the Children Act 1948); and

• (b) he was not a person in respect of whom a resolution under section 3 of the Act of 1980 or section 2 of the Act of 1948 was in force.

• (2) Where this paragraph applies, the child shall, on and after the day mentioned in sub-paragraph (1), be treated for the purposes of this Act as a child who is provided with accommodation by the local authority under Part III, but he shall cease to be so treated once he ceases to be so accommodated in accordance with the provisions of Part III.

• (3) Where—

• (a) this paragraph applies; and

• (b) the child, immediately before the day mentioned in sub-paragraph (1), was (by virtue of section 21(2) of the Act of 1980) under the charge and control of a person falling within paragraph 17(2)(a) or (b),

the child shall not be treated for the purposes of this Act as if he were being looked after by the authority concerned.

Boarded out children

21

• (1) Where, immediately before the day on which Part III comes into force, a child in the care of a local authority—

• (a) was—

• (i) boarded out with a person under section 21(1)(a) of the Child Care Act 1980; or

• (ii) placed under the charge and control of a person, under section 21(2) of that Act; and

• (b) the person with whom he was boarded out, or (as the case may be) placed, was not a person falling within paragraph 17(2)(a) or (b),

on and after that day, he shall be treated (subject to sub-paragraph (2)) as having been placed with a local authority foster parent and shall cease to be so treated when he ceases to be placed with that person in accordance with the provisions of this Act.

• (2) Regulations made under section 23(2)(a) shall not apply in relation to a person who is a local authority foster parent by virtue of sub-paragraph (1) before the end of the period of twelve months beginning with the day on which Part III comes into force and accordingly that person shall for that period be subject—

• (a) in a case falling within sub-paragraph (1)(a)(i), to terms and regulations mentioned in section 21(1)(a) of the Act of 1980; and

• (b) in a case falling within sub-paragraph (1)(a)(ii), to terms fixed under section 21(2) of that Act and regulations made under section 22A of that Act,

as if that Act had not been repealed by this Act.

Children in care to qualify for advice and assistance

22

Any reference in Part III to a person qualifying for advice and assistance shall be construed as including a reference to a person within the area of the local authority in question who is under twenty-one and who was, at any time after reaching the age of sixteen but while still a child—

• (a) a person falling within—

• (i) any of paragraphs (a) to (h) of paragraph 15(1); or

• (ii) paragraph 20(1); or

• (b) the subject of a criminal care order (within the meaning of paragraph 34).

Emigration of children in care

23

Where—

• (a) the Secretary of State has received a request in writing from a local authority that he give his consent under section 24 of the Child Care Act 1980 to the emigration of a child in their care; but

• (b) immediately before the repeal of the Act of 1980 by this Act, he has not determined whether or not to give his consent,

section 24 of the Act of 1980 shall continue to apply (regardless of that repeal) until the Secretary of State has determined whether or not to give his consent to the request.

Contributions for maintenance of children in care

24

• (1) Where, immediately before the day on which Part III of Schedule 2 comes into force, there was in force an order made (or having effect as if made) under any of the enactments mentioned in sub-paragraph (2), then, on and after that day—

• (a) the order shall have effect as if made under paragraph 23(2) of Schedule 2 against a person liable to contribute; and

• (b) Part III of Schedule 2 shall apply to the order, subject to the modifications in sub-paragraph (3).

• (2) The enactments are—

• (a) section 11(4) of the Domestic Proceedings and Magistrates’ Courts Act 1978;

• (b) section 26(2) of the Adoption Act 1976;

• (c) section 36(5) of the Children Act 1975;

• (d) section 2(3) of the Guardianship Act 1973;

• (e) section 2(1)(h) of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960,

(provisions empowering the court to make an order requiring a person to make periodical payments to a local authority in respect of a child in care).

• (3) The modifications are that, in paragraph 23 of Schedule 2—

• (a) in sub-paragraph (4), paragraph (a) shall be omitted;

• (b) for sub-paragraph (6) there shall be substituted—

(6) Where— (a) a contribution order is in force; (b) the authority serve a contribution notice under paragraph 22; and (c) the contributor and the authority reach an agreement under paragraph 22(7) in respect of the contribution notice, the effect of the agreement shall be to discharge the order from the date on which it is agreed that the agreement shall take effect

; and

• (c) at the end of sub-paragraph (10) there shall be inserted—

and (c) where the order is against a person who is not a parent of the child, shall be made with due regard to— (i) whether that person had assumed responsibility for the maintenance of the child, and, if so, the extent to which and basis on which he assumed that responsibility and the length of the period during which he met that responsibility; (ii) whether he did so knowing that the child was not his child; (iii) the liability of any other person to maintain the child.

SUPERVISION ORDERS

25

• (1) This paragraph applies to any supervision order—

• (a) made—

• (i) under section 1(3)(b) of the Children and Young Persons Act 1969; or

• (ii) under section 21(2) of that Act on the discharge of a care order made under section 1(3)(c) of that Act; and

• (b) in force immediately before the commencement of Part IV.

• (2) On and after the commencement of Part IV, the order shall be deemed to be a supervision order made under section 31 and—

• (a) any requirement of the order that the child reside with a named individual shall continue to have effect while the order remains in force, unless the court otherwise directs;

• (b) any other requirement imposed by the court, or directions given by the supervisor, shall be deemed to have been imposed or given under the appropriate provisions of Schedule 3.

• (3) Where, immediately before the commencement of Part IV, the order had been in force for a period of six months or more, it shall cease to have effect at the end of the period of six months beginning with the day on which Part IV comes into force unless—

• (a) the court directs that it shall cease to have effect at the end of a different period (which shall not exceed three years);

• (b) it ceases to have effect earlier in accordance with section 91; or

• (c) it would have ceased to have had effect earlier had this Act not been passed.

• (4) Where sub-paragraph (3) applies, paragraph 6 of Schedule 3 shall not apply.

• (5) Where, immediately before the commencement of Part IV, the order had been in force for less than six months it shall cease to have effect in accordance with section 91 and paragraph 6 of Schedule 3 unless—

• (a) the court directs that it shall cease to have effect at the end of a different period (which shall not exceed three years); or

• (b) it would have ceased to have had effect earlier had this Act not been passed.

Other supervision orders

26

• (1) This paragraph applies to any order for the supervision of a child which was in force immediately before the commencement of Part IV and was made under—

• (a) section 2(1)(f) of the Matrimonial Proceedings (Magistrates Courts) Act 1960;

• (b) section 7(4) of the Family Law Reform Act 1969;

• (c) section 44 of the Matrimonial Causes Act 1973;

• (d) section 2(2)(a) of the Guardianship Act 1973;

• (e) section 34(5) or 36(3)(b) of the Children Act 1975;

• (f) section 26(1)(a) of the Adoption Act 1976; or

• (g) section 9 of the Domestic Proceedings and Magistrates Courts Act 1978.

• (2) The order shall not be deemed to be a supervision order made under any provision of this Act but shall nevertheless continue in force for a period of one year beginning with the day on which Part IV comes into force unless—

• (a) the court directs that it shall cease to have effect at the end of a lesser period; or

• (b) it would have ceased to have had effect earlier had this Act not been passed.

Place of safety orders

27

• (1) This paragraph applies to—

• (a) any order or warrant authorising the removal of a child to a place of safety which—

• (i) was made, or issued, under any of the enactments mentioned in sub-paragraph (2); and

• (ii) was in force immediately before the commencement of Part IV; and

• (b) any interim order made under section 23(5) of the Children and Young Persons Act 1963 or section 28(6) of the Children and Young Persons Act 1969.

• (2) The enactments are—

• (a) section 40 of the Children and Young Persons Act 1933 (warrant to search for or remove child);

• (b) section 28(1) of the Children and Young Persons Act 1969 (detention of child in place of safety);

• (c) section 34(1) of the Adoption Act 1976 (removal of protected children from unsuitable surroundings);

• (d) section 12(1) of the Foster Children Act 1980 (removal of foster children kept in unsuitable surroundings).

• (3) The order or warrant shall continue to have effect as if this Act had not been passed.

• (4) Any enactment repealed by this Act shall continue to have effect in relation to the order or warrant so far as is necessary for the purposes of securing that the effect of the order is what it would have been had this Act not been passed.

• (5) Sub-paragraph (4) does not apply to the power to make an interim order or further interim order given by section 23(5) of the Children and Young Persons Act 1963 or section 28(6) of the Children and Young Persons Act 1969.

• (6) Where, immediately before section 28 of the Children and Young Persons Act 1969 is repealed by this Act, a child is being detained under the powers granted by that section, he may continue to be detained in accordance with that section but subsection (6) shall not apply.

Recovery of children

28

The repeal by this Act of subsection (1) of section 16 of the Child Care Act 1980 (arrest of child absent from compulsory care) shall not affect the operation of that section in relation to any child arrested before the coming into force of the repeal.

29

• (1) This paragraph applies where—

• (a) a summons has been issued under section 15 or 16 of the Child Care Act 1980 (recovery of children in voluntary or compulsory care); and

• (b) the child concerned is not produced in accordance with the summons before the repeal of that section by this Act comes into force.

• (2) The summons, any warrant issued in connection with it and section 15 or (as the case may be) section 16, shall continue to have effect as if this Act had not been passed.

30

The amendment by paragraph 27 of Schedule 12 of section 32 of the Children and Young Persons Act 1969 (detention of absentees) shall not affect the operation of that section in relation to—

• (a) any child arrested; or

• (b) any summons or warrant issued,

under that section before the coming into force of that paragraph.

Voluntary organisations: Parental rights resolutions

31

• (1) This paragraph applies to a resolution—

• (a) made under section 64 of the Child Care Act 1980 (transfer of parental rights and duties to voluntary organisations); and

• (b) in force immediately before the commencement of Part IV.

• (2) The resolution shall continue to have effect until the end of the period of six months beginning with the day on which Part IV comes into force unless it is brought to an end earlier in accordance with the provisions of the Act of 1980 preserved by this paragraph.

• (3) While the resolution remains in force, any relevant provisions of, or made under, the Act of 1980 shall continue to have effect with respect to it.

• (4) Sub-paragraph (3) does not apply to—

• (a) section 62 of the Act of 1980 and any regulations made under that section (arrangements by voluntary organisations for emigration of children); or

• (b) section 65 of the Act of 1980 (duty of local authority to assume parental rights and duties).

• (5) Section 5(2) of the Act of 1980 (which is applied to resolutions under Part VI of that Act by section 64(7) of that Act) shall have effect with respect to the resolution as if the reference in paragraph (c) to an appointment of a guardian under section 5 of the Guardianship of Minors Act 1971 were a reference to an appointment of a guardian under section 5 of this Act.

Foster children

32

• (1) This paragraph applies where—

• (a) immediately before the commencement of Part VIII, a child was a foster child within the meaning of the Foster Children Act 1980; and

• (b) the circumstances of the case are such that, had Parts VIII and IX then been in force, he would have been treated for the purposes of this Act as a child who was being provided with accommodation in a children’s home and not as a child who was being privately fostered.

• (2) If the child continues to be cared for and provided with accommodation as before, section 63(1) and (10) shall not apply in relation to him if—

• (a) an application for registration of the home in question is made under section 63 before the end of the period of three months beginning with the day on which Part VIII comes into force; and

• (b) the application has not been refused or, if it has been refused—

• (i) the period for an appeal against the decision has not expired; or

• (ii) an appeal against the refusal has been made but has not been determined or abandoned.

• (3) While section 63(1) and (10) does not apply, the child shall be treated as a privately fostered child for the purposes of Part IX.

Nurseries and child minding

33

• (1) Sub-paragraph (2) applies where, immediately before the commencement of Part X, any premises are registered under section 1(1)(a) of the Nurseries and Child-Minders Regulation Act 1948 (registration of premises, other than premises wholly or mainly used as private dwellings, where children are received to be looked after).

• (2) During the transitional period, the provisions of the Act of 1948 shall continue to have effect with respect to those premises to the exclusion of Part X.

• (3) Nothing in sub-paragraph (2) shall prevent the local authority concerned from registering any person under section 71(1)(b) with respect to the premises.

• (4) In this paragraph “the transitional period” means the period ending with—

• (a) the first anniversary of the commencement of Part X; or

• (b) if earlier, the date on which the local authority concerned registers any person under section 71(1)(b) with respect to the premises.

34

• (1) Sub-paragraph (2) applies where, immediately before the commencement of Part X—

• (a) a person is registered under section 1(1)(b) of the Act of 1948 (registration of persons who for reward receive into their homes children under the age of five to be looked after); and

• (b) all the children looked after by him as mentioned in section 1(1)(b) of that Act are under the age of five.

• (2) During the transitional period, the provisions of the Act of 1948 shall continue to have effect with respect to that person to the exclusion of Part X.

• (3) Nothing in sub-paragraph (2) shall prevent the local authority concerned from registering that person under section 71(1)(a).

• (4) In this paragraph “the transitional period” means the period ending with—

• (a) the first anniversary of the commencement of Part X; or

• (b) if earlier, the date on which the local authority concerned registers that person under section 71(1)(a).

Children accommodated in certain establishments

35

In calculating, for the purposes of section 85(1)(a) or 86(1)(a), the period of time for which a child has been accommodated any part of that period which fell before the day on which that section came into force shall be disregarded.

Criminal care orders

36

• (1) This paragraph applies where, immediately before the commencement of section 90(2) there was in force an order (“a criminal care order") made—

• (a) under section 7(7)(a) of the Children and Young Persons Act 1969 (alteration in treatment of young offenders etc.); or

• (b) under section 15(1) of that Act, on discharging a supervision order made under section 7(7)(b) of that Act.

• (2) The criminal care order shall continue to have effect until the end of the period of six months beginning with the day on which section 90(2) comes into force unless it is brought to an end earlier in accordance with—

• (a) the provisions of the Act of 1969 preserved by sub-paragraph (3)(a); or

• (b) this paragraph.

• (3) While the criminal care order remains in force, any relevant provisions—

• (a) of the Act of 1969; and

• (b) of the Child Care Act 1980,

shall continue to have effect with respect to it.

• (4) While the criminal care order remains in force, a court may, on the application of the appropriate person, make—

• (a) a residence order;

• (b) a care order or a supervision order under section 31;

• (c) an education supervision order under section 36 (regardless of subsection (6) of that section); or

• (d) an order falling within sub-paragraph (5),

and shall, on making any of those orders, discharge the criminal care order.

• (5) The order mentioned in sub-paragraph (4)(d) is an order having effect as if it were a supervision order of a kind mentioned in section 12AA of the Act of 1969 (as inserted by paragraph 23 of Schedule 12), that is to say, a supervision order—

• (a) imposing a requirement that the child shall live for a specified period in local authority accommodation; but

• (b) in relation to which the conditions mentioned in subsection (6) of section 12AA are not required to be satisfied.

• (6) The maximum period which may be specified in an order made under sub-paragraph (4)(d) is six months and such an order may stipulate that the child shall not live with a named person.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In sub-paragraph (4) “appropriate person” means—

• (a) in the case of an application for a residence order, any person (other than a local authority) who has the leave of the court;

• (b) in the case of an application for an education supervision order, a local education authority; and

• (c) in any other case, the local authority to whose care the child was committed by the order.

MISCELLANEOUS

Consents under the Marriage Act 1949 (c. 76)

37

• (1) In the circumstances mentioned in sub-paragraph (2), section 3 of and Schedule 2 to the Marriage Act 1949 (consents to marry) shall continue to have effect regardless of the amendment of that Act by paragraph 5 of Schedule 12.

• (2) The circumstances are that—

• (a) immediately before the day on which paragraph 5 of Schedule 12 comes into force, there is in force—

• (i) an existing order, as defined in paragraph 5(1); or

• (ii) an order of a kind mentioned in paragraph 16(1); and

• (b) section 3 of and Schedule 2 to the Act of 1949 would, but for this Act, have applied to the marriage of the child who is the subject of the order.

The Children Act 1975 (c. 72)

38

The amendments of other enactments made by the following provisions of the Children Act 1975 shall continue to have effect regardless of the repeal of the Act of 1975 by this Act—

• (a) section 68(4), (5) and (7) (amendments of section 32 of the Children and Young Persons Act 1969); and

• (b) in Schedule 3—

• (i) paragraph 13 (amendments of Births and Deaths Registration Act 1953);

• (ii) paragraph 43 (amendment of Perpetuities and Accumulations Act 1964);

• (iii) paragraphs 46 and 47 (amendments of Health Services and Public Health Act 1968); and

• (iv) paragraph 77 (amendment of Parliamentary and Other Pensions Act 1972).

The Child Care Act 1980 (c. 5)

39

The amendment made to section 106(2)(a) of the Children and Young Persons Act 1933 by paragraph 26 of Schedule 5 to the Child Care Act 1980 shall continue to have effect regardless of the repeal of the Act of 1980 by this Act.

Legal aid

40

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 15 — Repeals