Children Act 1975

PART IICustody

Custodianship orders

33Custodianship orders

(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 if the child is in England or Wales at the time the application is made.

(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 [1973 c. 18.] 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 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 [1971 c. 3.] Guardianship of Minors Act 1971 apply to applications made under this Part of this Act.

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

34Access and maintenance

(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 child's mother or father, 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 such periodical payments towards the maintenance of the child as it thinks reasonable ;

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

(d)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 [1973 c. 18.] Matrimonial Causes Act 1973) but the court in deciding whether to make an order under subsection (1)(b) against a person who is not the child's mother or father shall 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 did so, and to the length of time during which he discharged that responsibility;

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

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

(4)Subsections (2), (3), (4) and (6) (orders as to supervision, local authority care, maintenance etc. of children) of section 2 of the [1973 c. 29.] 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 [1971 c. 3.] Guardianship of Minors Act 1971, subject to the following modifications, that is to say—

(a)in section 2(2) (b) and (4)(a) of the Guardianship Act 1973 any reference to a parent of the 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 ".

(5)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.

35Revocation and variation of orders

(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 in respect of that child.

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

(5)Any order made under section 34 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 section 34 in respect of the child, shall cease to have effect when the child attains the age of 18 years.

36Care etc. of child on revocation of custodianship order

(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.

(5)Where the court makes an order under subsection (3)(a) the order may require the payment by either parent to the local authority, while it has the care of the child, of such weekly or other periodical sum towards the maintenance of the child as the court thinks reasonable.

(6)Sections 3 and 4 of the [1973 c. 29.] 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.

(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.

37Custodianship order on application for adoption or guardianship

(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 section 12 or, where the application is for a Convention adoption order, section 24(6) 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 neither of whom falls within paragraph (a),

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 section 9 (orders for custody and maintenance on application of mother or father) of the [1971 c. 3.] 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.

(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.

38Disputes between joint custodians

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.

39Reports by local authorities and probation officers

(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 [1973 c. 29.] 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.

40Notice of application to be given to local authority

(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 [1971 c. 3.] Guardianship of Minors Act 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 [1973 c. 29.] Guardianship Act 1973 shall apply to a report under this section which is submitted to a magistrates' court.

41Restriction on removal of child where applicant has provided home for three years

(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 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 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 £400 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).

42Return of child taken away in breach of section 41

(1)An authorised court may on the application of a person from whose 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 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.

43Enforcement of orders made by magistrates' courts

(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 section 54(3) of the [1952 c. 55.] Magistrates' Courts Act 1952 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 £10.

(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.

44Effect of custodianship order on existing custody

(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.

45Affiliation order on application by custodian

(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 [1957 c. 55.] 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.

46Procedure in magistrates' courts

(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 payments towards the maintenance of a child, or

(b)vary an order under this Part so as to increase a person's liability to make 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 section 55(1) of the [1952 c. 55.] Magistrates' Courts Act 1952 (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 [1949 c. 101.] Justices of the Peace Act 1949.

Custody in Scotland

47Granting of custody

(1)Without prejudice to any existing enactment or rule of law conferring a—

(a)right to apply for custody of a child ;

(b)power to grant custody of a child ;

any relative, step-parent or foster parent of the child is qualified to apply for, and subject to subsection (2) may be granted, such custody in the same manner as any person so qualified before the commencement of this Act.

(2)Except in the case of an application under section 2 of the [1930 c. 33.] Illegitimate Children (Scotland) Act 1930, custody of a child shall not be granted in any proceedings to a person other than a parent or guardian of the child unless that person—

(a)being a relative or step-parent of the child, has the consent of a parent or guardian of the child and has had care and possession of the child for the three months preceding the making of the application for custody; or

(b)has the consent of a parent or guardian of the child and has had care and possession of the child for a period or periods, before such application, which amounted to at least twelve months and included the three months preceding such application ; or

(c)has had care and possession of the child for a period or periods before such application which amounted to at least three years and included the three months preceding such application ; or

(d)while not falling within paragraph (a), (b) or (c), can show cause, having regard to section 1 of the [1925 c. 45.] Guardianship of Infants Act 1925 (the principle on which questions relating to custody, upbringing etc. of children are to be decided) why an order should be made awarding him custody of the child.

(3)Nothing in this section shall prejudice any ancillary power of the court in any proceedings relative to custody.

(4)The Secretary of State may by order a draft of which has been approved by each House of Parliament amend subsection (2)(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).

(5)In relation to a grant of custody to which this section applies,

(a)" guardian " has the same meaning as in the 1958 Act;

(b)" foster parent" means a person who, at the commencement of the proceedings in which the grant is made, has had care and possession of the child for a period or periods amounting to at least twelve months, whether or not that person continues to have care and possession of the child;

(c)" relative " has the same meaning as in the 1958 Act, except that, where the child is illegitimate, " relative " does not include the father of the child.

(6)The form and manner of any consent required in terms of subsection (2) (a) or (b) may be prescribed by act of sederunt.

48Miscellaneous provisions relative to custody

(1)A person making an application relating to the custody of a child shall, so far as practicable and in such manner as may be prescribed by act of sederunt, give notice of that application to each known parent of the child, and for this purpose the father of an illegitimate child shall be regarded as a parent of the child.

(2)Any order made by virtue of this Part of this Act may be varied or discharged by a subsequent order, either by the Court ex proprio motu or on the application of any person concerned.

(3)In section 11(1) of the [1973 c. 29.] Guardianship Act 1973, for the words from " Where an application " to " relates to the custody of a child " there is substituted " Where an application relating to the custody of a child, other than an application to which Part II of the [1958 c. 40.] Matrimonial Proceedings (Children) Act 1958 applies, is made to a court ".

(4)In section 12(2)(a) of the Guardianship Act 1973, for the words from " Where an application " to " by virtue of section 11 of this Act" there is substituted " Where any application, other than one to which Part II of the Matrimonial Proceedings (Children) Act 1958 applies, is made to a court for custody of a child or for the variation or discharge of any order (including an order made by virtue of section 11 above) relating to the custody of a child ".

49Notice to local authority of certain custody applications

(1)Where an applicant for custody of a child is a relative, step-parent or foster parent of the child, an order awarding custody to that applicant shall not except on cause shown be made unless the applicant—

(a)in any case where at the time of the application he resided in Scotland, has, within the seven days following the making of the application, given notice thereof to the local authority within whose area he resided at that time;

(b)in any other case, has within such time as the court may direct given, to such local authority in Scotland as the court may specify, notice of the making of the application.

(2)On receipt of a notice under subsection (1) the local authority shall investigate and report to the court on all the circumstances of the child and on the proposed arrangements for the care and upbringing of the child.

(3)Paragraphs (b) and (c) of subsection (2) of section 12 of the [1973 c. 29.] Guardianship Act 1973 shall apply in relation to an investigation and report in terms of this section as they apply in relation to an investigation and report in terms of paragraph (a) of subsection (2) of that section.

50Payments towards maintenance of children

Without prejudice to any existing powers and duties to make payments in respect of the maintenance of children, where custody of a child has been awarded to a person other than a parent of the child any local authority may make to that person payments for or towards the maintenance of the child.

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

(1)Where a person has applied for custody of 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 custody 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.

(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 custody except—

(i)with the applicant's consent;

(ii)with the leave of a court; or

(iii)with the authority, in terms of Part III of the [1968 c. 49.] Social Work (Scotland) Act 1968, of a justice of the peace or a children's hearing.

(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 £400 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).

52Return of child taken away in breach of section 51

A court in which an application for custody of a child is pending may—

(a)on the application of a person from whose custody 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 custody in breach of section 51, by order direct that other person not to remove the child from the applicant's custody in breach of that section.

53Custody order on application for adoption in Scotland

(1)Without prejudice to the provisions of section 19 (power to make an interim order giving custody), where on an application for an adoption order in respect of a child the applicant is a person qualified to apply for custody of the child, and the court is of opinion—

(a)in the case of an applicant who is a relative of the child or a husband or wife of the mother or father of the child (whether applying alone or jointly with his or her spouse)—

(i)that the child's welfare would not be better safeguarded and promoted by the making of an adoption order in favour of the applicant than it would be by the making of a custody order in his favour; and

(ii)that it would be appropriate to make a custody order in favour of the applicant; or

(b)in any other case, that the making of a custody order in favour of the applicant would be more appropriate than the making of an adoption order in his favour,

the court shall direct that the application is to be treated as if it had been made for custody of the child; but where such a direction is made the court shall not cease to have jurisdiction by reason only that it would not have had jurisdiction to hear an application by the applicant for custody of the child.

(2)In the application of this Part of this Act to any case where a direction under subsection (1) has been made—

(a)for references in section 47(2) to the making of an application for custody there shall be substituted references to the making of an application for an adoption order;

(b)for the references in section 49 and paragraph (a) of subsection (1) of section 51 to the making of an application there shall be substituted references to the making of a direction in terms of subsection (1) of this section;

(c)in section 51(1) for the words "for custody of" there shall be substituted the words " for an adoption order in respect of ".

(3)For the purposes of section 11 of the [1973 c. 29.] Guardianship Act 1973, any application in respect of which a direction has been made under subsection (1) of this section, is an application for custody of a child.

54Jurisdiction of Scottish courts in certain applications for custody

(1)Without prejudice to any existing grounds of jurisdiction, the court shall have jurisdiction in proceedings for custody of a child if at the time of application for such custody—

(a)the child resides in Scotland ; and

(b)the child is domiciled in England and Wales ; and

(c)the person applying for custody is a person qualified, in terms of subsections (3) to (8) of section 33 of this Act, to apply in England or Wales for a custodianship order in respect of the child.

(2)For the purposes of this section, " the court" means—

(a)the Court of Session ; or

(b)the sheriff court of the sheriffdom within which the child resides.

55Interpretation and extent of sections 47 to 55

(1)In sections 47 to 54 " child " means a person under the age of sixteen.

(2)Sections 47 to 54 and this section apply to Scotland only.