First of all, there is the 'non-intervention principle', that a Court will not
make any order regarding a child unless it is needed to resolve a dispute.
Parents can make arrangements between themselves without needing to get a court
order. They are the people best qualified to decide what is best for their
children. Even if an order was made some time ago, parents can still make their
own decisions and there is no need to go back to court again for a fresh order
if there is no dispute.
The Act introduced the term 'parental responsibility' and gave this to both
parents, if they were married, but only to the mother if she was unmarried.
That's not very new but the Act also enabled unmarried fathers to apply for
parental responsibility, giving them the same rights as the mother. The courts
have said a father should have the same rights in almost every case.
Twenty years on there is now a recognition that fathers play a much greater
role in their children's lives than in previous generations. In many families,
both parents work and care for their children together. Courts have struggled to
recognise this and have sometimes made shared Residence Orders but the
government have made it clear that 50/50 sharing is neither a norm or a right.
Grandparents and the wider family are recognised as having an important role
to play but this too has often been much misunderstood. There are many children
whose grandparents effectively care for them for one reason and another and the
Act requires Social Services to look first to the wider family before taking
children into care when their parents are unable to care for them. Historically,
the courts have been very reluctant to give grandparents additional rights when
a child is still looked after by its own parent(s).
The most controversial issue is the child's own rights. The Law has provided,
over and over again, that a child's welfare is paramount and the Children Act
requires every court to enquire into the child's own wishes. There are many who
argue that a child's wishes, even those of a toddler, should decide whether he
or she should see their absent parent. Others argue that a child is best
sheltered from all those disputes and has a right to have adults decide what is
best for them. The Act strives to steer a middle course - unacceptable to many -
simply by requiring the court to enquire into the child's wishes and to give
appropriate weight to them, taking into account the child's age and ability to
understand the implications of what they are saying.
In recent years, judges have been more ready in difficult cases to make Care
Orders for a child's interests to be represented by an independent Guardian and
Solicitor