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Simon Blain and Anna Worwood
The Children Act 1989 (‘Children Act') does not contain a definition of the term ‘parent'. Therein lies much of the Act's flexibility; as concepts of parenthood have evolved since 1989, the Children Act has managed to keep up without the need for radical amendment. Section 1(3) of the Act (the welfare checklist) states that when the court is considering whether to make, vary or discharge a s 8 order, or a special guardianship order, it is to have particular regard (amongst many other things) to ‘how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs'.
Section 10(4) provides that any ‘parent' can apply for any s 8 order, as can a step-parent who has acquired parental responsibility, and any person in whose favour a residence order is in force. A broader set of people, who were not deemed to be ‘parents' when the Act was drafted, can apply for residence or contact orders (but not other s 8 orders). The people comprising that set are listed at s 10(5), and include (amongst others) a party to a marriage or a civil partnership in relation to whom the child is a child of the family, and any person with whom the child has lived for a period of at least 3 years. As other legislation has come into force, giving legal recognition (often belatedly) to the myriad of alternative family structures which have emerged and become recognised by society, the Children Act, with its undefined and therefore infinitely flexible concept of parenthood, has required little amendment.
To read the rest of this article, see March  Family Law journal.
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