How the court decides issues about children

Any decision a court makes about who a child is to live with, who is to have contact with the child and indeed anything else about the child's upbringing must be made on the basis of what is in the best interests of the child.

As it says in Children Act 1989 s1(1) "the child's welfare shall be the court's paramount consideration".

Parents, of course have rights. There is a natural expectation that you have the right to have your young children living with you and the Human Rights Act 1998 specifically protects the right to respect for private and family life. The point is that the welfare of the child is to be treated as paramount and overrides other considerations.

The Welfare Checklist

Section 1(3) Children Act 1989 lists seven points which the court must particularly have regard to. This is generally referred to as the "Welfare Checklist"

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

his physical, emotional and educational needs;

the likely effect on him of any change in his circumstances;

his age, sex, background and any characteristics of his which the court considers relevant;

any harm which he has suffered or is at risk of suffering;

how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

the range of powers available to the court under this Act in the proceedings in question.

Delay and "The No Order Principle"

There are two other principles in section 1 Children Act

The first is that, in general, delay in dealing with questions relating to the upbringing of a child is likely to prejudice the welfare of the child.

The other is that the court should not make a Children Act order unless it considers that making the order would be better for the child than making no order at all.

This is often referred to as "the no order principle": a rather misleading description which can give the impression that it is best for the court never to make orders if it can be avoided.

This can be a problem in cases where some agreement, about contact for example,is reached between warring parents at the door of the court. The party who has been struggling to get contact will want an order confirming the agreed arrangements. The other may say that isn't necessary because contact is now agreed and "the no order principle applies". In reality the principle only applies if the proposed order would bring no benefit to the child at all. If no order is made and the agreement falls apart after a week or two everyone is more or less back to square one. This cannot be to the child's advantage and it is likely to be better for the child to have the issue settled by making an order.

There are no other rules

It is often said that courts will always give residence of young children to their mother rather than the father, or that in principle children are better off being brought up by their natural parent(s) than by other people. It is tempting to try to identify "rules" of this type governing the way the court decides children matters. There may be an number of observations like this that reflect how cases often turn out but it is a mistake to regard any of them as legal rules. Every decision must be guided by the welfare checklist and made in the interests of the child's welfare.


Fawcett & Pattni Solicitors at Links