6.1 The principle of non-intervention
The three principle pieces of legislation mentioned in Section 6 are based on the belief that children are generally best looked after within the family, with their parents playing a full part in their lives, and without recourse to legal proceedings unless absolutely necessary. Therefore, a key principle underpinning the legislation is that of minimum state intervention; the aim being to restrict intervention into family life by the courts and local authorities unless it is necessary to safeguard a child’s welfare.
The ‘no order’ principle
The Children’s Act 1989, the Children (Scotland) Act 1995 and the Children (Northern Ireland) Order 1995 prohibit the court from making an order (even when it has the power to do so), unless it would be better for the child than making no order at all. There are three aims underpinning this principle:
- To discourage unnecessary court orders from being made, in line with the principle of non-intervention. The restriction of orders to those cases where they are necessary to resolve a specific problem is also intended to reduce conflict and promote parental agreement and cooperation.
- To ensure that the order is granted only where it is likely to improve the child’s welfare and not simply because there are grounds for making the order. For example, in care proceedings, the court may decide that it would be better for a particular child not to be made the subject of a care order that would place that child in local authority care. The application by the court of this ‘no order’ principle should not deter local authorities from bringing proceedings in those cases where they believe that a care or supervision order is necessary in order to safeguard and promote a child’s welfare.
- To discourage the making of unnecessary applications.