HL Deb 08 November 1989 vol 512 cc904-10

401 Schedule 9, page 118, line 16, at end insert — `(1A) 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 75 of the Children Act 1989.)

402 Page 118, leave out lines 19 and 20 insert — '(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".'.

403 Page 118, line 20, at end insert —

'The Armed Forces Act 1981 (c. 55)

24A. 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)

24B. 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 21 of Schedule 2 to the Children Act 1989".'.

404 Page 118, line 22, after '25'. insert — '— (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 —

'Children and young persons in care.

27. Where —

  1. (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
  2. (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 —

  1. (a) a guardian has been appointed for a person who has not attained the age of eighteen years; or
  2. (b) a residence order (as defined by section 7 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 exlcusion 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)'.

405 Page 118, line 22, leave out 'the Mental Health Act 1983' and insert 'that Act'.

406 Page 118, line 25, at end insert —

'The Registered Homes Act 1984 (c.23)

25A. — (1) In section 1(5) of the Registered Homes Act 1984 (requirement of registration) for paragraphs (d) and (e) there shall be substituted — (d) any community home, voluntary home or children's home within the meaning of the Children Act 1989.

(2) In section 39 of that Act (preliminary) for paragraphs (a) and (b) there shall be substituted — (a) the Children Act 1989.

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

25B. For section 54 of the Mental Health (Scotland) Act 1984 (children and young persons in care of local authority) there shall be substituted the following section —

"Children and young persons in care of local authority

54. Where —

  1. (a) 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; or
  2. (b) a patient who is a child or young person is in the care of a local authority by virtue of a care order made under the Children Act 1989,
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)."

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

25C. 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".'.

407 Page 118, line 31, leave out from `(6)' to end of line 32 and insert 'for the words from "make arrangements" to the end there shall be substituted "secure that the arrested juvenile is moved to local authority accommodation".

(1A) 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 tie 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.".'.

408 Page 118, line 34, at end insert — '27A. 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". 27B. 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)

27C. 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)

27D. — (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 26 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 —

  1. (a) a care order under the Children Act 1989 (as defined by section 26(11) of that Act, read with section 75(1) and Schedule 10);
  2. (b) a residence order (as defined by section 7 of the Act of 1989); and
  3. (c) any order made by a court in England and Wales under any of the following enactments —
  1. (i) section 9(1), 10(1Xa) or 11(a) of the Guardianship of Minors Act 1971;
  2. (ii) section 42(1) or (2) or 43(1) of the Matrimonial Causes Act 1973;
  3. (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;
  4. (iv) section 8(2Xa), 10(1) or l9(1)(ii) of the Domestic Proceedings and Magistrates Courts Act 1978;
  5. (v) section 26(1Xb) of the Adoption Act 1976."

409 Page 119, line 30, at end insert —

'The Family Law Act 1986 (c.55)

31A. — (1) The Family Law Act 1986 shall be amended as follows.

(2) Subject to paragraphs 31B to 313, in Part I —

  1. (a) for the words "custody order", in each place where they occur, there shall be substituted "Part I order";
  2. (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
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  4. (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 —

  1. (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
  2. (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."

31 B. —(1) In section I (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 7 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 —

  1. (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
  2. (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 —

  1. (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
  2. (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) In subsection (2) of that section, in paragraph (c) for "(d)" there shall be substituted "(e)".

(3) For subsections (3) to (5) of that section there shall be substituted — (3) In this Part, 'Part I order' —

  1. (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
  2. (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."

31C. For section 2 there shall be substituted the following sections —

"Jurisdiction: general.

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(1Xd) order unless —

  1. (a) the condition in section 3 of this Act is satisfied, Or
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  3. (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.

Jurisdiction in or in connection with matrimonial proceedings.

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 —

  1. (a) the proceedings —
    1. (i) are proceedings for divorce or nullity of marriage, and
    2. (ii) are continuing;
  2. (b) the proceedings —
    1. (i) are proceedings for judicial separation,
    2. (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 —

  1. (i) the section 1(1Xa) order is being made forthwith, or
  2. (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 —

  1. (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
  2. (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 —

  1. (a) has jurisdiction to make a section 1(1)(a) order in or in connection with matrimonial proceedings, but
  2. (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."

31D. —(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".

31E. —(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 —

  1. (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
  2. (b) those proceedings are continuing.

(3B) Subsection (3) above shall not apply if—

  1. (a) the Part I order was made in or in connection with proceedings for judicial separation in England and Wales;
  2. 909
  3. (b) those proceedings are continuing; and
  4. (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 —

  1. (a) a residence order (within the meaning of the Children Act 1989) in favour of a person with respect to a child,
  2. (b) an order made in the exercise of the High Court's inherent jurisdicton with respect to children by virtue of which a person has care of a child, or
  3. (c) an order —
    1. (i) of a kind mentioned in section 1(3)(a) of this Act,
    2. (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 14 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 14 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under —

  1. (a) section 7(4) of the Family Law Reform Act 1969,
  2. (b) section 44 of the Matrimonial Causes Act 1973,
  3. (c) section 2(2)(a) of the Guardianship Act 1973,
  4. (d) section 34(5) or 36(3)(b) of the Children Act 1975, or
  5. (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 10 to the Children Act 1989."

31F. For section 7 (interpretation of Chapter II) there shall be substituted —

"Interpretation of Chapter II.

7. In this Chapter —

  1. (a) 'child' means a person who has not attained the age of eighteen;
  2. (b) 'matrimonial proceedings' means proceedings for divorce, nullity of marriage or judicial separation;
  3. (c) 'the relevant date' means, in relation to the making or variation of an order —
    1. (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 detemined together), and
    2. (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
  4. (d) 'section 1(1)(a) order' and 'section 1(1)(d) order' mean orders falling within section 1(lXa) and (d) of this Act respectively."

31G. In each of the following sections —

  1. (a) section 11(2)(a) (provisions supplementary to section 9 and 10),
  2. (b) section 13(5)(a) (jurisdiction ancillary to matrimonial proceedings),
  3. (c) section 20(3)(a) (habitual reisdence or presence of child),
  4. (d) section 23(4Xa) (duration and variation of custody orders),
for "4(5)" there shall be substituted "2A(4)".

31H. In each of the following sections —

  1. (a) section 19(2) (jurisdiction in cases other than divorce, etc.),
  2. (b) section 20(6) (habitual residence or presence of child), and
  3. (c) section 23(5) (duration and variation of custody orders),
for "section 1(1)(d)" there shall be substituted "section 1(1)(e)".

311. In section 34(3) (power to order recovery of child) for paragraph (a) there shall be substituted — (a) section (Enforcement of residence orders) of the Children Act 1989".

31J. —(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 Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 401 to 409.

I spoke to Amendment No. 401 when I moved Amendment No. 235. I spoke to Amendment No. 402 when I moved Amendment No. 385 and Amendments Nos. 403, 404, 405 and 406 were dealt with when I moved Amendment No. 391. Amendments Nos. 407 and 408 were spoken to in connection with Amendment No. 50 and Amendment No. 409 was spoken to with Amendment No. 385.

Moved, That the House do agree with the Commons in the said amendments. —(The Lord Chancellor.)

On Question, Motion agreed to.