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The Modern Law

FROM £35.10

An authoritative study of the legal position of children in our society, which is essential reading for students of child law, family law and social work.

Listen to Andrew Bainham and Stephen Gilmore discuss developments within the new fourth edition of their book Children: The Modern Law.

Children: The Modern Law is well established as the leading textbook dealing comprehensively with the law and policy relating to children.
This fourth edition has been extensively revised and updated to take account of significant legislative, case-law and other developments including:
  • The Family Justice Review 2011, the Government Response 2012 and the likely impact of the Children and Families Bill 2013.
  • Detailed treatment of parentage and parental responsibility, including the impact of the Human Fertilisation and Embryology Act 2008 and the Welfare Reform Act 2009.
  • Important decisions on relocation in shared care cases: K v K [2011] EWCA Civ 793 and Re F [2012] EWCA Civ 1364.
  • A new separate chapter on international child abduction, examining recent important Supreme Court decisions: Re A [2013] UKSC 60, Re S [2012] UKSC 10 and Re E (Children) [2011] UKSC 27.
  • The impact on child support of the Child Maintenance and Other Payments Act 2008 and the Welfare Reform Act 2012.
  • Important public law authorities on care orders in uncertain perpetrator cases (Re J [2013] UKSC 9), and on the standard of appellate review and proportionality (Re B [2013] UKSC 33).
  • The Narey Report on adoption and case-law on post-adoption contact

Children: The Modern Law is an authoritative study of the legal position of children in our society and is essential reading for students of child law, family law and social work and family law professionals.
Part One: Background and Sources
  • Children and the Law: A Demographic and Historical Sketch
  • Fundamental Principles: The Children Act 1989 and the United Nations Convention on the Rights of the Child

Part Two: Children and Families

  • Parentage
  • Parental Responsibility
  • Private Disputes and Issues in Children Cases
  • Child Abduction
  • Children and Parents: The Central Issues
  • Children and Medical Decisions
  • Children Money and Property

Part Three:
Children and Local Authorities

  • Local Authority Support for Children and Families
  • Investigation and Short-term Protection
  • Care and Supervision
  • Permanence for Children: Adoption and Special Guardianship

Part Four: Children and Society

  • Children in Court
  • Children and the Criminal Law
  • Children and the Civil Law
  • Children and Education
"Throughout the book, relevant cases and legislation are discussed and set on the context of not only the continuous process of development of substantive law but also, and this is one of the book's greatest strengths, of academic commentary and analysis and the policy debates both within the legal world and beyond. Although primarily aimed at law and social work students (and it will be invaluable for them) practitioners will also find it useful as a ready source of information and commentary on the current state of the law in the areas that it covers...highly recommended book."
Simon Johnson
Barrister, Stour Chambers, Canterbury
For a full review click here

"An excellent text on child law. An authoritative and accessible text which considers the law in a social context"
Dr Katherine Wright,
Principal lecturer in law, Sheffield Hallam University

"Still the best text on the area"
Claire Bessant
Principal Lecturer, School of Law, Northumbria University

Reviews from previous editions

"a landmark in the development of child law"
The Modern Law Review

"presents a wide range of material in a well ordered and accessible form. Extensive road-testing among undergraduates by this reviewer confirms the view that it will prove a popular and durable student text"
Journal of Child Law

"an indispensable guide to all aspects of child law and policy"

Education and the Law

"a welcome addition to those teaching, researching or practising in child law ... it is hard to imagine a more comprehensive or useful guide ... an exceptional foundation for studies ... Indeed, anyone with an interest in child law will find this book invaluable"
The Law Teacher

"a popular and authoritative treatment ... an accessible and incisive review of the theoretical issues involving children such as the nature of children's rights as well as providing a thorough and up-to-date coverage of the law. This is particularly useful because much of the other writing on these theoretical topics is not readily comprehensible ... a lucid, up-to-date coverage which is to be highly recommended to both practitioners and students"
Family Law

"an authoritative and comprehensive survey of the law ... this clear and accessible book provides an indispensable guide to all aspects of child law and policy"
Publication Monitor

"practical, and interesting approach to Child Law ... For someone who is coming afresh to Child or Family Law, this book would serve as a comprehensive and authoratative introduction"
Children Panel Newsletter

"This fourth edition is a comprehensive and authoritative text which covers a diverse range of topics...this is an excellent text written in an interesting and accessible style...The cost seems modest for such a wealth of information"
Emma Kendall
Warwickshire County Council
For a full review click here
Eight years is a long time in family law. The changes which have taken place
since the last edition was published in 2005 have been many and various.
Radical changes to the law of parentage introduced by the Human Fertilisation
and Embryology Act 2008 have widened the categories of legal parents. As well
as fuelling the debate about whether parenthood is primarily biological or
social, these developments have provoked new questions about the
gender-specific status of ‘mother’ or ‘father’ and indeed whether children
should be limited to two parents.

The law on child support was amended by the Child Maintenance and Other
Payments Act 2008 and the Welfare Reform Act 2012, changing how child
support is calculated, extending enforcement mechanisms, whilst at the same
time effecting a notable shift towards the promotion of private ordering.

The private law in the Children Act 1989 was significantly amended by the
Children and Adoption Act 2006 to reflect the growing importance attached to
contact between parents and children following relationship breakdown. These
provisions, designed to facilitate and if necessary enforce contact, are about to
be supplemented by a controversial legislative statement of the importance to
children of the continuing involvement of both parents when the Children and
Families Bill 2013 is enacted. The same legislation will abolish the principal
private law orders for residence and contact and replace them with a generic
‘child arrangements order’. The new order will cover much of the same
ground, but the intention is to avoid the loaded terminology and imbalance in
the parents’ positions which the current orders are thought to embody.
Overshadowing all these changes, important though they are, is the substantial
withdrawal of legal aid in April 2013 from private law cases. Henceforth the
implication is that, with limited exceptions, such disputes are not really the
business of the law but are more appropriate for resolution outside the courts.
Even where they do reach the courts the sense is that parents locked in dispute, apart from the affluent, will have to go it alone without the assistance of
lawyers. Time will tell whether any of this is an improvement on what went
before or whether it is more calculated to promote the best interests of

There have also been extensive developments in the case law since the last
edition. The House of Lords in Re G (Children) [2006] UKHL 43 and the
Supreme Court in Re B [2009] UKSC 5 have both considered what, if any,
priority should be given to ‘natural parents’ who get into disputes with others
(and some may think that the guidance given is less than clear). Other
important decisions at the highest level have considered specific aspects of the
private law. In Holmes-Moorhouse v London Borough of Richmond Upon
[2009] UKHL 7 the House of Lords gave guidance on the courts’
approach to shared residence. Several leading decisions have addressed the
growing phenomenon of international child abduction, clarifying the impact of
the ECtHR’s jurisprudence on interpretation of the Hague Convention (Re D
(Abduction: Rights of Custody)
[2006] UKHL 51 [2007] 1 FLR 961; Re E
(Children) (Abduction: Custody Appeal)
[2011] UKSC 27, [2011] 2 FLR 758; Re S
(A Child) (Abduction: Rights of Custody)
[2012] UKSC 10, [2012] 2 FLR 442),
and the meaning of ‘habitual residence’ (Re A (Children) [2013] UKSC 60, [2013]
1 FLR 1041); and the Court of Appeal has delivered significant decisions on the
related issue of permission to relocate from the jurisdiction (K v K (Relocation:
Shared Care Arrangement)
[2011] EWCA Civ 793, [2012] 2 FLR 880, and Re F
(Child: International Relocation)
[2012] EWCA Civ 1364, [2013] 1 FLR 645).

The public law has also not escaped legislative attention, with enactment since
the last edition of the Children Act 2004 and the Children and Young Persons
Act 2008 (restructuring, and making further provision for, the delivery of
social work services to children), and the Childcare Act 2006 (regulating
child-minding and childcare provision). The intended reforms in the Children
and Families Bill 2013 have the potential for changing the landscape of the
public law. The attempt to impose a rigid six month time limit for care
proceedings, again subject to only limited exceptions, along with a strident
insistence that expert evidence be ‘necessary’, will change the face of these
proceedings in a way which many of those who are well-informed do not think
will be for the better. The same can be said of the provisions which would
reduce the courts’ scrutiny of the care plan and which unashamedly give a push
to adoption as the ‘officially preferred’ solution for long-term substitute care.

The case law on care proceedings has proved equally controversial. The House
of Lords or Supreme Court has several times been called upon to consider the
difficult evidential questions involved in child protection (In re B (Children)
(Care Proceedings: Standard of Proof) (CAFCASS intervening)
[2008] UKHL
35, [2009] AC 11; In re S-B (Children) (Care Proceedings: Standard of Proof)
[2009] UKSC 17, [2010] 1 AC 678; In re J (Children) [2013] UKSC 9; and In re
B (A Child)
[2013] UKSC 33). The balance between adequate child protection
and maintaining family integrity can appear almost impossible to strike
properly where someone in a child’s household is a possible perpetrator of
proven harm to another child in the past. The principles enunciated by the
Supreme Court have divided commentators, including the authors of this

In the criminal justice sphere, reforms continue to be made to the treatment of
children in conflict with the law though these are not (yet) quite as extensive as
those set out in earlier editions of this book. Nonetheless, important changes
have been instigated through legislation (for example, new sentences, forms of
diversion and changes to the system of remand), judicial decision (including,
most recently, the protections available to 17 year olds detained and questioned by the police) and in policy and practice. Perhaps most significantly since the last edition of this book was published, the numbers of children being brought into the youth justice system and sentenced to custody have dropped massively. 

There is also a much greater focus on the rights of children in trouble with the
law. Of great importance to children’s development, and enshrined in a
fundamental human right, education is a field marked by almost constant legal
change. Areas receiving particular attention in chapter 17 include special
educational needs (including the important reforms under the Children and
Families Bill), the school curriculum, discipline, truancy and the raising of the
‘participation age’, and important judicial rulings on matters such as sex
education and the wearing of religious dress or symbols by school pupils. This
is a field in which children’s independent rights have tended to be
overshadowed by those of their parents and carers but, as the chapter
shows, they are belatedly receiving a degree of recognition.

As can be seen from the foregoing brief summary, in under a decade the
landscape of child law has altered significantly. To accommodate these changes we have made considerable changes to the structure of the book.
The previous edition addressed international child law issues in its final
chapter. This was never intended to relegate international issues merely to an
‘add-on’. Now, however, international perspectives are such a feature of how
we must all think about child law across all subject matter that they cannot be
left to a final chapter. We have now, therefore, incorporated international
provisions, where relevant, into the body of other chapters. The developments
in the area of international child abduction are such that we felt that it now
warrants a separate chapter of its own. Previous editions had structured the
private law relating to children around chapters addressing the married,
unmarried, and social family respectively.

However, in light of the major
changes since enactment of the Children Act 1989 to the law on
parentage/parenthood and parental responsibility, and to the law relating to
same sex couples, such an arrangement is clearly no longer appropriate nor
efficient. We have now, therefore, introduced three chapters respectively
addressing in general the issues of parentage, parental responsibility, and
private law disputes concerning children. Adoption is now used primarily as a
means of ensuring a permanent, stable placement for children who have been
taken into care, and we now therefore discuss the law of adoption, together
with special guardianship and other modes of permanency planning for
children, later in the book than in previous editions, after the discussion of
care and supervision orders.

The extensive developments in the law are reflected in the growing size of
editions of this book. While the first two editions ran to about 600 pages, this
latest edition fights just shy of 1000. Keeping pace with the volume of
legislative and case law developments has presented us with an ongoing
challenge. However, we have sought to do our best to state the law as at 1
September 2013 and, where possible, have managed to incorporate some later

Andrew Bainham,
Stephen Gilmore,
September 2013

Andrew Bainham,
of the Middle Temple, Barrister
Tenant at 14 Gray's Inn Square
University Reader in Family Law and Policy
Formerly Fellow of Christ's Collage, Cambridge

Stephen Gilmore ,
of Lincoln's Inn, Barrister
Senior Lecturer in Law, King’s College London

With specialist contributions by:

Neville Harris,

of Gray’s Inn, Barrister
Professor of Law, University of Manchester

Kathryn Hollingsworth,
Professor of Law, University of Newcastle

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