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(3) In paragraph (e), for the words "section 8 of the Foster Children Act 1980" there shall be substituted "section 60 of the Children Act 1989".
(4) In paragraph (1) for the words "section 1 of the Children's Homes Act 1982" there shall be substituted "section 56 of the Children Act 1989".'.-- [Mr. Mellor.]
Schedule 12
Transitional Provisions
The Solicitor-General : I beg to move amendment No. 436, in page 148, leave out lines 17 to 26 and insert--
Pending Proceedings, Etc. 1.--(1) Subject to sub-paragraph (4), nothing in any provisions of this Act (other then the repeals mentioned in
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sub-paragraph (2)) shall affect any proceedings which are pending immediately before the commencement of that provision.(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 (Evidence given by, or with respect to, children) (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 juvenile 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.
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.
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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 havecustody 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 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 9(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 31(1)(c) there shall be inserted ) "(c 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."
( 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 (8) there were substituted--
("(8) Subsections (1) and (6) 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 9 shall have effect as if for subsection (5)(c)(i) there were substituted--
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"(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 18 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 20 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 9 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 14(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 (Child assessment orders) (11), 38(10) and 40(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.--(1) Sub-paragraph (2) applies in relation to any existing order which, but for the repeal by this Act of- -
(a) section 13(1) of the Guardianship of Minors Act 1971 ; (
(b) section 43(1) of the Children Act 1975 ; or
(c) section 33 of the Domestic Proceedings and Magistrates' Courts Act 1978,
(provisions concerning the enforcement of custody orders) might have been enforced as if it were an order requiring a person to give up a child to another person.
(2) Where this sub-paragraph applies, the existing order may, after the repeal of the enactments mentioned in sub-paragraph (1)(a) to (c), be enforced under section (Enforcement of residence orders) as if--
(a) any reference to a residence order were a reference to the existing order ; and
(b) any reference to a person in whose favour the residence order is in force were a reference to a person to whom actual custody of the child is given by an existing order which is in force. (3) In sub-paragraph (2) "actual custody", in relation to a child, means the actual possession of his person.
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 7 order (other than a residence order) with respect to a child to whom any existing order is in force, the existing order shall have effect subject to the section 7 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.
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(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(2).
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 that 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 11, 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--
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