Children Act 1975

Part II E+W+S Custody

Modifications etc. (not altering text)

C1 Pt. II (Ss. 33–55) modified (E.W.) by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), ss. 8(3), 12, Sch. 1

C2 Pt II (Ss. 33–55) amended (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 2(1)(e)

Custodianship orders E+W+S

33 Custodianship orders. E+W+S

(1) An authorised court may on the application of one or more persons qualified under subsection (3) make an order vesting the legal custody of a child in the applicant or, as the case may be, in one or more of the applicants . . . F1

(2) An order under subsection (1) may be referred to as a custodianship order, and the person in whom legal custody of the child is vested under the order may be referred to as the custodian of the child.

(3) The persons qualified to apply for a custodianship order are—

(a) a relative or step-parent of the child—

(i) who applies with the consent of a person having legal custody of the child, and

(ii) with whom the child has had his home for the three months preceding the making of the application;

(b) any person—

(i) who applies with the consent of a person having legal custody of the child, and

(ii) with whom the child has had his home for a period or periods before the making of the application which amount to at least twelve months and include the three months preceding the making of the application;

(c) any person with whom the child has had his home for a period or periods before the making of the application which amount to at least three years and include the three months preceding the making of the application.

(4) The mother or father of the child is not qualified under any paragraph of subsection (3).

(5) A step-parent of the child is not qualified under any paragraph of subsection (3) if in proceedings for divorce or nullity of marriage the child was named in an order made under paragraph (b) or (c) of section 41(1) (arrangements for welfare of children of family) of the M1 Matrimonial Causes Act 1973.

(6) If no person has legal custody of the child, or the applicant himself has legal custody or the person with legal custody cannot be found, paragraphs (a) and (b) of subsection (3) apply with the omission of sub-paragraph (i).

(7) The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (3)(c) to substitute a different period for the period of three years mentioned in that paragraph (or the period which, by a previous order under this subsection, was substituted for that period).

(8) Subsection (5) does not apply—

(a) if the parent other than the one the step-parent married is dead or cannot be found, or

(b) if the order referred to in subsection (5) was made under subsection (1)(c) of section 41 of the M2 Matrimonial Causes Act 1973 and it has since been determined that the child was not a child of the family to whom that section applied.

(9) For the avoidance of doubt, it is hereby declared that the provisions of section 1 of the M3 Guardianship of Minors Act 1971 apply to applications made under this Part of this Act.

[F2 (9A) In this Part of this Act references (however expressed) to any relationship between two persons shall be construed in accordance with section 1 of the Family Law Reform Act 1987.]

(10) This section and sections 34 to 46 do not apply to Scotland.

Textual Amendments

F1 Words repealed by Family Law Act 1986 (c. 55, SIF 49:3), s. 68(1)(2), Sch. 1 para. 19, Sch. 2

F2 S. 33(9A) inserted (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 60

Marginal Citations

M1 1973 c. 18(49:3).

M2 1973 c. 18(49:3).

M3 1971 c. 3(49:9).

[F3 34 Access and maintenance. E+W+S

(1) An authorised court may, on making a custodianship order or while a custodianship order is in force, by order—

(a) on the application of the mother, the father or a grandparent of the child, make such provision as it thinks fit requiring access to the child to be given to the applicant;

(b) on the application of the custodian, require the child’s mother or father (or both) to make to the applicant for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;

(c) on the application of the custodian, require the child’s mother or father (or both) to pay to the applicant for the benefit of the child or to the child such lump sum as may be so specified;

(d) on the application of the child’s mother or father, revoke an order requiring the applicant to contribute to the child’s maintenance made (otherwise than under this section) by any court;

(e) on the application of the child’s mother or father or the custodian, vary an order made (otherwise than under this section) by any court requiring the mother or father to contribute towards the child’s maintenance—

(i) by altering the amount of the contributions;

(ii) by substituting the custodian for the person to whom the contributions were ordered to be made.

(2) References in subsection (1) to the child’s mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the M4 Matrimonial Causes Act 1973).

[F4 (3) No order shall be made under subsection (1)(b) or (c) requiring the father of an illegitimate child to make any payments to the child’s custodian or to the child.

(4) An authorised court shall have power to make an order under subsection (1)(a) in favour of a grandparent of a child notwithstanding that the child is illegitimate.]

(5) Subsections (2), (3), (3A), (3B), (4), [F5 (4A), (5A), (5B), (5C), (5D) and (5E)] (orders as to the supervision, local authority care, maintenance etc. of children) of section 2 of the M5 Guardianship Act 1973 and sections 3 and 4 of that Act (supplementary provisions) shall apply to an application for a custodianship order as they apply to an application under section 9 of the M6 Guardianship of Minors Act 1971 subject to the following modifications, that is to say—

(a) in [F5 section 2(2)(b) and (4A)] of the M7 Guardianship Act 1973 any reference to a parent of a minor to whom the order relates shall be construed as including a reference to any other individual;

(b) section 3(3) of that Act shall have effect as if the words “or the custodian” were inserted after the words “application of either parent”;

(c) in section 4(2) of that Act the reference to section 6 of that Act shall be construed as including a reference to section 39 and 40 of this Act.

(6) A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child.]

Textual Amendments

F3 S. 34 substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 64, Sch. 1

F4 S. 34(3)(4) repealed (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1)(4), Sch. 2 para. 61(2), Sch. 4

F5 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 61(3)

Marginal Citations

M4 1973 c. 18(49:3).

M5 1973 c. 29(49:10).

M6 1971 c. 3(49:9).

M7 1973 c. 29(49:10).

[F6 34A Matters to which court is required to have regard in exercising powers as to maintenance. E+W+S

(1) The court, in deciding whether to exercise its powers under section 34(1)(b) or (c) and, if so, in what manner, shall have regard to all the circumstances of the case including the following matters, that is to say—

(a) the income, earning capacity, property and other financial resources of each parent and of the custodian;

(b) the financial needs, obligations and responsibilities of each parent and of the custodian;

(c) the financial needs of the child;

(d) the income, earning capacity (if any), property and other financial resources of the child;

(e) any physical or mental disability of the child.

(2) The court in deciding whether to exercise its powers under section 34(1)(b) or (c) against a person who is not the child’s mother or father and, if so, in what manner, shall, in addition to the matters mentioned in subsection (1), have regard (among the circumstances of the case)—

(a) to whether that person had assumed any responsibility for the child’s maintenance and, if he did, to the extent to which and the basis on which he assumed that responsibility and to the length of time during which he discharged that responsibility;

(b) to whether in assuming and discharging that responsibility he did so knowing that the child was not his own child;

(c) to the liability of any other person to maintain the child.

(3) In subsection (1)—

(a) references to a parent of a child include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the M8 Matrimonial Causes Act 1973);

(b) the reference in paragraph (a) to income, earning capacity, and other financial resources includes the income, earning capacity, property and other financial resources which the person concerned is likely to have in the foreseeable future; and

(c) the reference in paragraph (b) to financial needs, obligations and responsibilities includes the financial needs, obligations and responsibilities which the person concerned is likely to have in the foreseeable future.]

Textual Amendments

F6 Ss. 34A, 34B inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 65, Sch. 1

Marginal Citations

M8 1973 c. 18(49:3).

34B Duration of orders for maintenance. E+W+S

(1) The term to be specified in an order made under section 34(1)(b) in favour of a child may begin with the date of the making of an application for the order in question or any later date but—

(a) shall not in the first instance extend beyond the date of the birthday of the child next following his attaining the upper limit of the compulsory school age (that is to say, the age that is for the time being that limit by virtue of section 35 of the M9 Education Act 1944 together with any Order in Council made under that section) unless the court thinks it right in the circumstances of the case to specify a later date; and

(b) shall not in any event, subject to subsection (2) below, extend beyond the date of the child’s eighteenth birthday.

(2) Paragraph (b) of subsection (1) shall not apply in the case of a child if it appears to the court that—

(a) the child is, or will be, or if an order were made without complying with that paragraph would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or

(b) there are special circumstances which justify the making of an order without complying with that paragraph.

(3) Any order made under section 34(1)(b) in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order.

Marginal Citations

M9 1944 c. 31(41:1).

35 Revocation and variation of orders. E+W+S

(1) An authorised court may by order revoke a custodianship order on the application of—

(a) the custodian, or

(b) the mother or father, or a guardian, of the child, or

(c) any local authority in England or Wales.

(2) The court shall not proceed to hear an application made by any person for the revocation of a custodianship order where a previous such application made by the same person was refused by that or any other court unless—

(a) in refusing the previous application the court directed that this subsection should not apply, or

(b) it appears to the court that because of a change in circumstances or for any other reason it is proper to proceed with the application.

(3) The custodian of a child may apply to an authorised court for the revocation or variation of any order made under section 34 [F7 (other than an order under subsection (1)(c))] in respect of that child.

(4) Any other person on whose application an order under section 34 was made, or who was required by [F8 an order made under that section (other than an order under subsection (1)(c))] to contribute towards the maintenance of the child, may apply to an authorised court for the revocation or variation of that order.

[F9 (4A) An application for the variation of an order made under section 34(1)(b) may, if the child has attained the age of sixteen, be made by the child himself.]

(5) Any order made under [F10 section 34(1)(a), (b) or (e)] in respect of a child who is the subject of a custodianship order shall cease to have effect on the revocation of the custodianship order.

(6) A custodianship order made in respect of a child, and any order made under [F11 section 34(1)(a)] in respect of the child, shall cease to have effect when the child attains the age of 18 years.

[F12 (7) On an application under this section for the revocation or variation of an order made under section 34(1)(b), the court shall have power to suspend the operation of any provision of that order temporarily and to revive the operation of any provision so suspended.

(8) In exercising its power under this section to revoke or vary an order made under section 34(1)(b), the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.

(9) Where on an application under this section the court varies any payments required to be made under section 34(1)(b), the court may provide that the payments as so varied shall be made from such date as the court may specify, not being earlier than the date of the making of the application.

[X1 (10) Where an order made under section 34(1)(b) ceases to have effect on the date on which the child attains the age of sixteen or at any time after that date but before or on the date on which he attains the age of eighteen, then, if at any time before he attains the age of twenty-one an application is made by the child to an authorised court for an order under this subsection, the court shall have power by order to revive the first mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to vary or revoke under this section any order so revived.]

[F13 (10) Where an order under section 34(1)(b) ceases to have effect on the date on which the child attains the age of 16 or at any time after that date but before or on the date on which he attains the age of 18, the child may apply to an authorised court, other than a magistrates’ court, for an order for the revival of that order, and if, on such an application, it appears to the court that—

(a) the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he also is, will be or would be in gainful employment; or

(b) there are special circumstances which justify the making of an order under this subsection,

the court shall have power by order to revive the order made under section 34(1)(b) from such date as the court may specify, not being earlier than the date of the making of the application and to vary or revoke under this section any order so revived.

(10A) Any order made by a magistrates’ court under section 34(1)(b) which is revived by an order under subsection (10) shall for the purposes of the enforcement of the order be treated as an order made by the magistrates’ court by which the order was originally made.]

(11) The powers of a magistrates’ court to revoke, revive or vary under [F14 section 60 of the M10 Magistrates’ Courts Act 1980] an order for the periodical payment of money and to suspend or rescind under [F14 section 63(2)] of that Act certain other orders shall not apply in relation to a custodianship order or an order made under section 34.]

Editorial Information

X1 S. 35(10)(10A) commencing “Where an order under” substituted (E.W.) (in force 1.4.1989 subject to a saving in S.I. 1989/382, art. 3 Sch. 2 para 2) for subsection (10) commencing “Where an order made” by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 62

Textual Amendments

F7 Words inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(2), Sch. 1

F8 Words substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(3), Sch. 1

F9 S. 35(4A) inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(4), Sch. 1

F10 Words substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(5), Sch. 1

F11 Words substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(6), Sch. 1

F12 S. 35(7)–(11) added by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 66(7), Sch. 1

F13 S. 35(10)(10A) commencing “Where an order under” substituted (E.W.) (in force 1.4.1989 subject to a saving in S.I. 1989/382, art. 3 Sch. 2 para 2) for subsection (10) commencing “Where an order made” by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 62

F14 Words substituted by virtue of Interpretation Act 1978 (c. 30, SIF 115:1), s. 17(2)(a)

Marginal Citations

M10 1980 c. 45(82).

[F15 35A Care etc. of child on revocation of custodianship order. E+W+S

(1) Without prejudice to the generality of section 34(1)(c), an order under that section for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the child before the making of the order to be met.

(2) The amount of any lump sum required to be paid by an order made by a magistrates’ court under section 34(1)(c) shall not exceed £500 or such larger amount as the Secretary of State may from time to time by order fix for the purposes of this subsection.

Any order made by the Secretary of State under this subsection shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) The power of the court under section 35 to vary or revoke an order made under section 34(1)(b) shall include power to make an order under section 34(1)(c) for the payment of a lump sum by the child’s mother or father (or both).

(4) The amount of any lump sum which the mother or father of the child may be required to pay by virtue of subsection (3) shall not, in the case of an order made by a magistrates’ court, exceed the maximum amount that may at the time of the making of the order be required to be paid under sub-section (2), but a magistrates’ court may make an order for the payment of a sum not exceeding that amount notwithstanding that the child’s mother or father was required to pay a lump sum by a previous order under this Part of this Act.

(5) An order made under section 34(1)(c) for the payment of a lump sum may provide for the payment of that sum by instalments, and where such an order makes provision for the payment of a lump sum by instalments, an authorised court, on an application made either by the person liable to pay or the person entitled to receive that sum, shall have power to vary that order by varying the number of instalments payable, the amount of any instalment payable and the date on which any instalment becomes payable.

(6) References in this section to the mother or father of a child include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the M11 Matrimonial Causes Act 1973).]

Textual Amendments

F15 S. 35A inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 67, Sch. 1

Marginal Citations

M11 1973 c. 18(49:3).

36 Provisions relating to lump sums. E+W+S

(1) Before revoking a custodianship order the court shall ascertain who would have legal custody of the child, if, on the revocation of the custodianship order, no further order were made under this section.

(2) If the child would not be in the legal custody of any person, the court shall, if it revokes the custodianship order, commit the care of the child to a specified local authority.

(3) If there is a person who would have legal custody of the child on the revocation of the custodianship order, the court shall consider whether it is desirable in the interests of the welfare of the child for the child to be in the legal custody of that person and—

(a) if the court is of the opinion that it would not be so desirable, it shall on revoking the custodianship order commit the care of the child to a specified local authority;

(b) if it is of the opinion that while it is desirable for the child to be in the legal custody of that person, it is also desirable in the interests of the welfare of the child for him to be under the supervision of an independent person, the court shall, on revoking the custodianship order, order that the child shall be under the supervision of a specified local authority or of a probation officer.

(4) Before exercising its functions under this section the court shall, unless it has sufficient information before it for the purpose, request—

(a) a local authority to arrange for an officer of the authority, or

(b) a probation officer,

to make to the court a report, orally or in writing, on the desirability of the child returning to the legal custody of any individual, and it shall be the duty of the local authority or probation officer to comply with the request.

[F16 (5) Where the court makes an order under subsection (3)(a) the order may require either parent to make to the local authority or to the child such periodical payments, and for such term, as may be specified in the order; but the order shall only require payments to be made to the local authority while it has the care of the child.

[F17 (5A) An order made under subsection (3)(a) with reference to an illegitimate child shall not require the father of that child to make any payments to the local authority or to the child.]

(5B) The court in deciding whether to exercise its powers under subsection (5) and, if so, in what manner, shall have regard to all the circumstances of the case including the matters to which the court is required to have regard under section 34A.

(5C) Section 34B shall apply in relation to an order under subsection (5) as it applies in relation to an order under section 34(1)(b).]

(6) Sections 3 and 4 of the M12 Guardianship Act 1973 (which contain supplementary provisions relating to children who are subject to supervision, or in the care of local authority, by virtue of orders made under section 2 of that Act) apply in relation to an order under this section as they apply in relation to an order under section 2 of that Act [F18 subject to the modification that the reference in section 4(2) of that Act to section 6 of that Act shall be construed as including a reference to subsection (4) of this section].

(7) Subsections (2) to (6) of section 6 of the Guardianship Act 1973 shall apply in relation to reports which are requested by magistrates’ courts under this section as they apply to reports under subsection (1) of that section.

Textual Amendments

F16 S. 36(5)–(5C) substituted for s. 36(5) by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 68, Sch. 1

F17 S. 36(5A) repealed (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1)(4), Sch. 2 para. 63, Sch. 4

F18 Words added by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 89, Sch. 1, Sch. 2 para. 46

Marginal Citations

M12 1973 c. 29(49:10).

37 Custodianship order on application for adoption or guardianship. E+W+S

(1) Where on an application for an adoption order by a relative of the child or by the husband or wife of the mother or father of the child, whether alone or jointly with his or her spouse, the requirements of [F19 section 12][F19 section 16 of the M13 Adoption Act 1976] or, where the application is for a Convention adoption order, [F19 section 24(6)][F19 section 17(6) of that Act] are satisfied, but the court is satisfied—

(a) that the child’s welfare would not be better safeguarded and promoted by the making of adoption order in favour of the applicant, than it would be by the making of a custodianship order in his favour, and

(b) that it would be appropriate to make a custodianship order in the applicant’s favour,

the court shall direct the application to be treated as if it had been made by the applicant under section 33, but if the application was made jointly by the father or mother of the child and his or her spouse, the court shall direct the application to be treated as if made by the father’s wife or the mother’s husband alone.

(2) Where on an application for an adoption order made—

(a) by a person who is neither a relative of the child nor the husband or wife of the mother or father of the child; or

(b) by a married couple [F20 neither of whom is a relative of the child or the husband or wife of the mother or father of the child],

the said requirements are satisfied but the court is of opinion that it would be more appropriate to make a custodianship order in favour of the applicant, it may direct the application to be treated as if it had been made by the applicant under section 33.

(3) Where on an application under [F21 section 9 (orders for custody and maintenance][F21 section 9 (orders for custody] on application of mother or father) of the M14 Guardianship of Minors Act 1971 the court is of opinion that legal custody should be given to a person other than the mother or father, it may direct the application to be treated as if it had been made by that person under section 33.

(4) Where a direction is given under this section the applicant shall be treated (if such is not the case) as if he were qualified to apply for a custodianship order and this Part, except section 40, shall have effect accordingly.

[F22 (4A) Where a custodianship order is made by virtue of a direction under subsection (3) or a direction under section 8(3) of the M15 Domestic Proceedings and Magistrates’ Courts Act 1978, the court may direct that the order, or such provision thereof as the court may specify, shall not have effect until the occurrence of an event specified by the court or the expiration of a period so specified; and where the court has directed that the custodianship order, or any provision thereof, shall not have effect until the expiration of a specified period, the court may, at any time before the expiration of that period, direct that the order, or that provision thereof, shall not have effect until the expiration of such further period as the court may specify.]

(5) Subsection (1) does not apply to an application made by a step-parent whether alone or jointly with another person in any case where the step-parent is prevented by section 33(5) from being qualified to apply for a custodianship order in respect of the child.

(6) Subsections (1) and (2) do not apply to an application for an adoption order made by the child’s mother or father alone.

Textual Amendments

F19 Words “section 16” to “1976” substituted for words “section 12” and words “section 17(6)” to “Act” substituted for words “section 24(6)” (E.W.) by Adoption Act 1976 (c. 36, SIF 49:11), s. 74(2), Sch. 3 para. 19

F20 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 23

F21 Words “section 9 (orders for custody)” expressed to be substituted (E.W.) for “section 9 (orders for custody and maintenance)” by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 64

F22 S. 37(4A) inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 69, Sch. 1

Marginal Citations

M13 1976 c. 36(49:11).

M14 1971 c. 3(49:9).

M15 1978 c. 22(49:3).

38 Disputes between joint custodians. E+W+S

If two persons have a parental right or duty vested in them jointly by a custodianship order or by virtue of section 44(2) but cannot agree on its exercise or performance, either of them may apply to an authorised court, and the court may make such order regarding the exercise of the right or performance of the duty as it thinks fit.

39 Reports by local authorities and probation officers. E+W+S

(1) A court dealing with an application made under this Part, or an application which is treated as if made under section 33, may request—

(a) a local authority to arrange for an officer of the authority, or

(b) a probation officer,

to make to the court a report, orally or in writing, with respect to any specified matter which appears to the court to be relevant to the application, and it shall be the duty of the local authority or probation officer to comply with the request.

(2) Subsections (2) to (6) of section 6 of the M16 Guardianship Act 1973 shall apply in relation to reports which are requested by magistrates’ courts under this section as they apply to reports under subsection (1) of that section.

Marginal Citations

M16 1973 c. 29(49:10).

40 Notice of application to be given to local authority. E+W+S

(1) A custodianship order shall not be made unless the applicant has given notice of the application for the order to the local authority in whose area the child resides within the seven days following the making of the application, or such extended period as the court or local authority may allow.

(2) On receipt of a notice given by the applicant under subsection (1) the local authority shall arrange for an officer of the authority to make a report to the court (so far as is practicable) on the matters prescribed under subsection (3) and on any other matter which he considers to be relevant to the application.

(3) The Secretary of State shall by regulations prescribe matters which are to be included in a report under subsection (2) and, in particular, but without prejudice to the generality of the foregoing, the prescribed matters shall include—

(a) the wishes and feelings of the child having regard to his age and understanding and all other matters relevant to the operation of section 1 (principle on which questions relating to custody are to be decided) of the M17 Guardianship of Minors 1971 in relation to the application;

(b) the means and suitability of the applicant;

(c) information of a kind specified in the regulations relating to members of the applicant’s household;

(d) the wishes regarding the application, and the means, of the mother and father of the child.

(4) Subsections (2), (3) and (3A) of section 6 of the M18 Guardianship Act 1973 shall apply to a report under this section which is submitted to a magistrates’ court.

Marginal Citations

M17 1971 c. 3(49:9).

M18 1973 c. 29(49:10).

41 Restriction on removal of child where applicant has provided home for three years. E+W+S

(1) While an application for a custodianship order in respect of a child made by the person with whom the child has at the time the application is made had his home for a period (whether continuous or not) amounting to at least three years is pending, another person is not entitled, against the will of the applicant, to remove the child from the applicant’s [F23 actual] custody except with the leave of a court or under authority conferred by any enactment or on the arrest of the child.

(2) In any case where subsection (1) applies, and

(a) the child was in the care of a local authority before he began to have his home with the applicant, and

(b) the child remains in the care of a local authority,

the authority in whose care the child is shall not remove the child from the applicant’s [F23 actual] custody except with the applicant’s consent or the leave of a court.

(3) Any person who contravenes subsection (1) commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding [F24 level 5 on the standard scale] or both.

(4) The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (1) to substitute a different period for the period mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period).

Textual Amendments

F23 Words inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 60(b)

F24 Words substituted by virtue of Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46

42 Return of child taken away in breach of section 41. E+W+S

(1) An authorised court may on the application of a person from whose [F25 actual] custody a child has been removed in breach of section 41 order the person who has so removed the child to return the child to the applicant.

(2) An authorised court may on the application of a person who has reasonable grounds for believing that another person is intending to remove a child from the applicant’s [F25 actual] custody in breach of section 41 by order direct that other person not to remove the child from the applicant’s custody in breach of that section.

(3) If, in the case of an order made by the High Court under subsection (1), the High Court or, in the case of an order made by a county court under subsection (1), a county court is satisfied that the child has not been returned to the applicant, the court may make an order authorising an officer of the court to search such premises as may be specified in the order for the child and, if the officer finds the child, to return the child to the applicant.

(4) If a justice of the peace is satisfied by information on oath that there are reasonable grounds for believing that a child to whom an order under subsection (1) relates is in premises specified in the information, he may issue a search warrant authorising a constable to search the premises for the child; and if a constable acting in pursuance of a warrant under this section finds the child, he shall return the child to the person on whose application the order under subsection (1) was made.

(5) An order under subsection (3) may be enforced in like manner as a warrant for committal.

Textual Amendments

F25 Words inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 60(b)

43 Enforcement of orders made by magistrates’ courts. E+W+S

(1) If at a time when the custodian is entitled to actual custody of the child by virtue of a custodianship order made by a magistrates’ court any other person has actual custody of him, a copy of the custodianship order may be served on that person and thereupon the order may, without prejudice to any other remedy open to the custodian, be enforced under [F26 section 63(3) of the M19 Magistrates’ Courts Act 1980] as if it were an order of a magistrates’ court requiring that person to give up the child to the custodian.

(2) Any person for the time being under an obligation to make payments in pursuance of any order for the payment of money made by a magistrates’ court under section 34 shall give notice of any change of address to such person (if any) as may be specified in the order; and if he fails without reasonable excuse to give such a notice he commits an offence and shall be liable on summary conviction to a fine not exceeding [F27 level 2 on the standard scale].

[X2 (3) An order for the payment of money made by a magistrates’ court under section 34 shall be enforceable as a magistrates’ court maintenance order within the meaning of section 150(1) of the M20 Magistrates’ Courts Act 1980.]

[F28 (3) An order for the payment of money made by a magistrates’ court under section 34 may be enforced in like manner as an affiliation order, and the enactments relating to affiliation orders shall apply accordingly with the necessary modifications.]

Editorial Information

X2 S. 43(3) appearing first substituted (E.W.) for s. 43(3) appearing second by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 65

Textual Amendments

F26 Words substituted by virtue of Interpretation Act 1978 (c. 30, SIF 115:1), s. 17(2)(a)

F27 Words substituted by virtue of Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 89, Sch. 1, Sch. 2 para. 47 and Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 46

F28 S. 43(3) appearing first substituted (E.W.) for s. 43(3) appearing second by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 65

Marginal Citations

M19 1980 c. 43(82).

M20 1980 c. 43 (82)

[F29 43A Restriction on removal of child from England and Wales. E+W+S

[F30 (1) An authorised court, on making an order to which this subsection applies or at any time while such an order is in force, may by order direct, if an application is made under this section, that no person shall take the child to whom the order relates out of [F31 the United Kingdom, or out of any part of the United Kingdom specified in the order,] except with the leave of the court.

(1A) Subsection (1) applies to the following orders under this Part of this Act—

(a) a custodianship order; and

(b) an interim order under section 34(5) containing provision regarding legal custody.]

(2) An authorised court may by order vary or revoke any order made under this section.

(3) An application for an order under subsection (1), or for the variation or revocation of such an order, may be made by the mother or father of the child or by the custodian.]

Textual Amendments

F29 S. 43A inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 70, Sch. 1

F30 S. 43A(1)(1A) substituted for s. 43A(1) by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 24

F31 Words substituted by Family Law Act 1986 (c. 55, SIF 49:10), s. 35(1)

44 Effect of custodianship order on existing custody. E+W+S

(1) While a custodianship order has effect in relation to a child the right of any person other than the custodian to legal custody of the child is suspended, but, subject to any further order made by any court, revives on the revocation of the custodianship order.

(2) Subsection (1) does not apply where the person already having custody is a parent of the child and the person who becomes custodian under the order is the husband or wife of the parent; and in such a case the spouses have the legal custody jointly.

[F32 45 Affiliation order on application by custodian. S

(1) Where a custodianship order subsists in respect of an illegitimate child, and no affiliation order relating to the child has been made under the M21 Affiliation Proceedings Act 1957, the custodian of the child may apply to a justice of the peace acting for the petty sessions area in which the child or the child’s mother resides for a summons to be served under section 1 of that Act.

(2) The court shall proceed on the application as on a complaint under that section, but the person entitled to any payments under an affiliation order made on the application shall be the custodian.

(3) An application may not be made under subsection (1)—

(a) if the custodian is married to the child’s mother, or

(b) more than three years after the custodianship order was made.]

Textual Amendments

F32 S. 45 repealed (E.W.) by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1)(4), Sch. 2 para. 65, Sch. 4

Marginal Citations

M21 1957 c. 55(49:7).

46 Procedure in magistrates’ courts. E+W+S

(1) It is hereby declared that any jurisdiction conferred on a magistrates’ court by virtue of this Part is exercisable notwithstanding that the proceedings are brought by or against a person residing outside England and Wales.

(2) A magistrates’ court may, subject to subsection (3), proceed on an application for an order under this Part notwithstanding that the defendant has not been served with the summons, and rules may prescribe matters as to which the court is to be satisfied before proceeding in such a case.

(3) A magistrates’ court shall not—

(a) make an order under this Part requiring a person to make [F33 periodical payments or pay a lump sum] towards the maintenance of a child, or

(b) vary an order under this Part so as to increase a person’s liability to make [F34 periodical] payments towards the maintenance of a child,

unless the person has been served with the summons.

(4) Rules may make provision as to the persons who are to be made defendants to a complaint for an order under this Part and where there are two or more defendants to such a complaint the power of the court under [F35 section 64(1) of the M22 Magistrates’ Courts Act 1980] (power to award costs etc.) shall be deemed to include power, whatever adjudication the court makes, to order any of the parties to pay the whole or part of the costs of all or any of the parties.

(5) In this section, “rules” means rules made under section 15 of the Justices of the M23 Peace Act 1949.

Textual Amendments

F33 Words substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 89, Sch. 1, Sch. 2 para. 48(a)

F34 Word inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22, SIF 49:3), s. 89, Sch. 1, Sch. 2 para. 48(b)

F35 Words substituted by Magistrates' Courts Act 1980 (c. 43, SIF 82), s. 154, Sch. 7 para. 138

Marginal Citations

M22 1980 c. 43(82).

M23 1949 c. 101(82).

Custody in Scotland E+W+S

F36 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F36 S. 47 repealed (1.11.1996) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 26(2), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F37 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F37 S. 48 repealed (1.11.1996) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 26(2), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F38 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F38 S. 49 repealed (1.11.1996) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 26(2), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

50 Payments towards maintenance of children. S

Without prejudice to any existing powers and duties to make payments in respect of the maintenance of children, where [F39 a child under the age of [F40 eighteen] is residing with and being cared for (other than as a foster child) by a person other than a parent of the child, a council constituted under section 2 of the M24 Local Government (Scotland) Act 1994] may make to that person payments for or towards the maintenance of the child.

Textual Amendments

F39 Words in s. 50 substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(3) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F40 Words in s. 50 substituted (1.10.2001) by 2001 asp 8, s. 71; S.S.I. 2001/304, art. 2(a)

Marginal Citations

M24 1994 c. 39.

51 Restriction on removal of child where applicant has provided home for three years. S

(1) Where a person has applied for [F41 a residence order in relation to] a child, it shall be an offence, except with the authority of a court or under authority conferred by any enactment or on the arrest of the child, to remove the child from the [F42 care and possession] of the applicant against the will of the applicant if—

(a) the child has been in the care and possession of that person for a period or periods before the making of the application which amount to at least three years; and

(b) the application is pending in any court.

F43 [( 2 ) In any case where subsection (1) applies, and the child—

(a) was being looked after by a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 before he began to have his home with the applicant, and

(b) continues to be looked after by such a council,

the council by whom the child is being looked after shall not remove him from the applicant’s care and possession except—

(i) with the applicant’s consent;

(ii) with the leave of the court; [F44 or]

(iii) in accordance with an order made[F45 , or authority or warrant granted,] under Chapter [F45 2 or] 3 of Part II of the Children (Scotland) Act 1995.]

[F46 (iv) in accordance with section 56 of the Children’s Hearings (Scotland) Act 2011 (asp 1) (constable’s power to remove child to place of safety); or

(v) in accordance with an order or warrant under that Act of 2011.]

(3) Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding [F47 level 5 on the standard scale] or both.

(4) The Secretary of State may by order, a draft of which has been approved by each House of Parliament, amend subsection (1) to substitute a different period for the period mentioned in that subsection (or for the period which, by a previous order under this subsection, was substituted for that period).

F48 [( 5 ) In this section “ looked after ” and “ residence order ” have the meanings given respectively by section 17(6) and section 11(2)(c) of the Children (Scotland) Act 1995; and “ residence order ” shall have the same meaning in sections 52 and 53 of this Act. ]

Textual Amendments

F41 Words in s. 51(1) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(a) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F42 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 25

F43 S. 51(2) substituted (1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(b) (with s. 103(1)); S.I. 1996/3201, art. 3(7)

F44 Word in s. 51(2) repealed (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(a)

F45 Words in s. 51(2)(iii) repealed (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(b)

F46 S. 51(2)(iv)(v) inserted (S.) (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, Sch. 1 para. 3(c)

F47 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G

F48 S. 51(5) added (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(4)(c) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

52 Return of child taken away in breach of section 51. S

A court in which an application for [F49 a residence order in relation to] a child is pending may—

(a) on the application of a person from whose [F50 care and possession] the child has been removed in breach of section 51, order the person who has so removed the child to return the child to the applicant;

(b) on the application of a person who has reasonable grounds for believing that another person is intending to remove the child from the applicant’s [F50 care and possession] in breach of section 51, by order direct that other person not to remove the child from the applicant’s [F50 care and possession] in breach of that section.

Textual Amendments

F49 Words in s. 52 substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(5) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F50 Words substituted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41, SIF 113:3), s. 9, Sch. 2 para. 26

F51 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F51 S. 53 repealed (1.11.1996) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 26(6), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F52 S

Textual Amendments

F52 S. 54 repealed by Family Law Act 1986 (c. 55, SIF 49:3), s. 68(2), Sch. 2

55 Interpretation and extent of [F53 sections 50 to 53]. S

(1) In [F53 sections 50 to 53]“child” means a person under the age of sixteen [F54 and “relative” means a grand-parent, brother, sister, uncle or aunt, whether of the full blood or half blood or by affinity].

(2) [F53 Sections 50 to 53] and this section apply to Scotland only [F55 and shall be construed in accordance with section 1(1) of the M25 Law Reform (Parent and Child) (Scotland) Act 1986].

Textual Amendments

F53 Words in s. 55 substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 26(7) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch.

F54 Words added by Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9, SIF 49:8), ss. 9, 10(1), Sch. 1 para. 14(3)

F55 Words added by Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9, SIF 49:8), ss. 9, 10(1), Sch. 1 para. 14(4)

Marginal Citations

M25 1986 c. 9(49:8).