Guardianship, custody and orders concerning children

Guardianship of and custody of children signify two things which have not always been clearly distinguished. Guardianship denotes the appointment of someone to take care of parentless children. It usually includes custody, which is concerned with the right of parents or a parent or a third party to decide matters relating to the upbringing of a child, and it includes control over the child's property. Custody usually, but not always, includes the right to care and control of the child and to determine his residence.

The English courts have also had an inherent jurisdiction and power to make a child, whether an orphan or not, a ward of court, which means that the court is effectively the custodian of the child. It may, for example, prevent the child from contracting an undesirable marriage or associating with undesirable people.

With respect to these matters, English domestic law was radically altered by the Children Act 1989. The concept of 'custody' was abolished. Wardship was preserved but re-entitled simply the 'inherent' jurisdiction, and its ambit severely curtailed.1 The method of appointment of a guardian was clearly regulated.

Custody orders are replaced by what are called 'Section 8 orders'. By that section of the Act, the courts can make orders as to (i) residence, (ii) contact (which replaces access), (iii) prohibited steps and (iv) 'specific issues'. These orders may be made in respect of a child under eighteen but only exceptionally if the child is over sixteen. Proceedings in which section 8 orders are sought under various statutes, and proceedings under the inherent jurisdiction, are called 'family proceedings' (though orders made under the inherent jurisdiction are not section 8 orders).

Children Act 1989, s. 100. It is expected that the inherent jurisdiction will in practice almost wither away.


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Conflict of Laws


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