Most divorces where children are involved are settled satisfactorily. It is usually more difficult in the early years with young children, but after that the children can make their own decisions. The fathers may say they have been refused contact, and that by then the bond with their children has been broken irreparably. Contact orders can be entered into at any time and approved by the court.
The Children Act 1989 has become the cornerstone of the new law relating to children and divorce. Part 1 of the Act confirms that the overriding principle is that the child’s welfare is paramount in both public and private law relating to children. Parental responsibility has replaced any former notions of parental rights and duties.
Part 2 changed the private law on children, by abolishing the concepts of custody, care, control and access and replacing them with power of the court to make orders. These can relate to where the child lives or as a home known as residence, and contact, that is when and how the child keeps in touch with the parent who is not resident with the child.
It also created Specific Issues or Prohibited Steps Orders.
The rest of the Act relates to public law matters defining the duties of local authorities to make such orders as emergency protection orders and child assessment orders, which assist local authorities to carry out their duties to protect the child.
Under the old law the parent who had custody was able to impose on the parent without custody a variety of decisions which could only be opposed by launching a full custody application. The parent with custody was able to make all major decisions and impose them on the other parent.
SECTION 8 ORDERS
The new orders are taken under S.8 of the Children Act 1989 and are therefore referred to as S.8 orders. The procedure behind these applications is found in the Family Proceedings Rules 1991 [FPR 1991]. The procedure creates a totally new approach to child disputes where the child has rights and the parents have duties, as do the local authorities. Normally there is a non-interventionist policy
This new approach has gone some way towards resolving child dispute problems, as it encourages better relations between parents since it is no longer necessary for either party to a divorce to insist upon custody of the children or any order at all. Joint residence is not encouraged as the children should have one home. Thus if the parties can agree between themselves there need be no orders at all.