Part IU.K. Child Custody

Modifications etc. (not altering text)

C1Pt. I applied by S.I. 1991/1723, art. 3(2), Sch. 2 and art. 3(3), Sch. 3.

Chapter IU.K. Preliminary

1 Orders to which Part I applies.E+W+N.I.

(1)Subject to the following provisions of this section, in this Part “ [F1Part I order]” means—

[F2(a)a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order]

(b)an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the [F3residence, custody, care or control of a child, contact with or], access to a child or the education or upbringing of a child, excluding—

(i)an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii)an adoption order as defined in section 12(1) of the M1Adoption (Scotland) Act 1978;

(iii)an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv)an order [F4giving parental responsibilities and parental rights in relation to] a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v)an order made under the M2Education (Scotland) Act 1980;

(vi)an order made under Part II or III of the M3Social Work (Scotland) Act 1968;

(vii)an order made under the M4Child Abduction and Custody Act 1985;

(viii)an order for the delivery of a child or other order for the enforcement of a [F1Part I order];

(ix)an order relating to the tutory or curatory of a child;

(c)an order made by a court in Northern Ireland under any of the following enactments—

(i)section 5 of the M5Guardianship of Infants Act 1886 (except so far as it relates to costs);

(ii)Article 45(1) of the M6Matrimonial Causes (Northern Ireland) Order 1978;

(iii)Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv)Article 10(2) or 20(1)(ii) of the M7Domestic Proceedings (Northern Ireland) Order 1980;

[F5(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—

(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

(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—

(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

(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 this Part “ [F1Part I order]” does not include—

(a)an order within subsection (1) F6 . . . (c) above which varies or revokes a previous order made under the same enactment;

F7(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an order within paragraphs [F8(e)] of subsection (1) above which varies or revokes a previous order within that paragraph.

[F9(3)In this Part, “Part I order”—

(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

(b)(subject to section 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.]

(6)Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Extent Information

E1This version of this provision extends to England and Wales and Northern Ireland only; a separate version has been created for Scotland only

Textual Amendments

F1Words in S. 1(1) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a)(with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F5S. 1(1)(d)(e) substituted (14.10.1991) for s. 1(1)(d) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(b) (with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

Modifications etc. (not altering text)

Marginal Citations

1 Orders to which Part I applies.S

(1)Subject to the following provisions of this section, in this Part “ [F10Part I order]” means—

[F11(a)a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order]

(b)an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the [F12residence, custody, care or control of a child, contact with or], access to a child or the education or upbringing of a child, excluding—

(i)an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii)an adoption order as defined in section 12(1) of the M8Adoption (Scotland) Act 1978;

(iii)an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv)an order [F13giving parental responsibilities and parental rights in relation to] a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v)an order made under the M9Education (Scotland) Act 1980;

(vi)an order made under Part II or III of the M10Social Work (Scotland) Act 1968;

(vii)an order made under the M11Child Abduction and Custody Act 1985;

(viii)an order for the delivery of a child or other order for the enforcement of a [F10Part I order];

(ix)an order relating to the [F14guardianship]of a child;

(c)an order made by a court in Northern Ireland under any of the following enactments—

(i)section 5 of the M12Guardianship of Infants Act 1886 (except so far as it relates to costs);

(ii)Article 45(1) of the M13Matrimonial Causes (Northern Ireland) Order 1978;

(iii)Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv)Article 10(2) or 20(1)(ii) of the M14Domestic Proceedings (Northern Ireland) Order 1980;

[F15(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—

(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

(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—

(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

(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 this Part “ [F10Part I order]” does not include—

(a)an order within subsection (1) F16 . . . (c) above which varies or revokes a previous order made under the same enactment;

F17(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an order within paragraphs [F18(e)] of subsection (1) above which varies or revokes a previous order within that paragraph.

[F19(3)In this Part, “Part I order”—

(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

(b)(subject to section 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.]

(6)Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Extent Information

E2This version of this provision extends to Scotland only; a separate version has been created for England and Wales and Northern Ireland only

Textual Amendments

F10Words in S. 1(1) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a)(with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F15S. 1(1)(d)(e) substituted (14.10.1991) for s. 1(1)(d) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(b) (with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

Modifications etc. (not altering text)

Marginal Citations