The Welfare Checklist – How the Family Court determines contact

Proceedings under the Children Act 1989 can be, and often are, an emotionally difficult time for those involved. Indeed, the mere fact that a court has become involved in adjudicating what form contact will take place between a parent and their child necessarily indicates there is some degree of acrimony between parties.

A clear understanding of the approach that the Court takes when determining such issues can go a long way towards alleviating some of the stress involved and enabling one to take a more informed approach to decisions relating to their case and ultimately the child involved.

What follows is intended to give a very basic overview of the legal framework the Court uses when deciding on and directing proceedings involving children. It is hoped that this will serve to demystify the court’s decision making criteria and in turn empower reader’s to make more informed decisions in line with that criteria, whether they are currently involved in proceedings or considering bringing them.

The Welfare Principle and Welfare Checklist

Section 1(1) of the Children Act 1989 states:

• When a court determines any question with respect to –
  • The ubringing of a child;
    the child’s welfare shall be the court’s paramount consideration

This is called the ‘Welfare Principle’ and it is this overarching legal principle that will inform and guide any decision made by the court in relation to contested proceedings over child contact.

When the court applies this principle, they take into account a number of different factors, which, in totality, are referred to as the ‘Welfare Checklist’. These are set out in Section 1(3) of the CA 1989 and include:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
• His/her physical, emotional and educational needs;
• The likely effect on him/her of any change in his/her circumstances;
• His/her age, sex, background and any characteristics of his/hers which the court considers relevant;
• Any harm which he/she has suffered or is at risk of suffering;
• How capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;
• The range of powers available to the court under this Act in the proceedings in question.

The aim of this is to provide a framework that will promote a consistent approach by solicitors in preparing evidence as well as by the court in considering and adjudicating on it.

Children Act Proceedings and Effective Decision Making

For anyone involved in proceedings under the CA 1989, a clear understanding of this framework is highly beneficial. Understanding the Courts approach will enable you to more effectively take a step back from the emotional element of your case and act more objectively. In doing so, you can take decisions that are more likely to be looked upon favourably by the Court.

Both parties must do their best to put aside differences they may feel with their ex-partner and consider the best interests of the child, as the Courts have little sympathy for attempts to use the legal process as ‘artillery’ to intimidate or otherwise influence an opposing party into any particular arrangement.

Point-scoring or deliberate lack of flexibility out of spite when it comes to facilitating contact with a child reflects very poorly indeed. The Court’s paramount concern is with the child and this is reflected in both legislation and case law.

What does this mean?

In an adversarial legal system, like the UK has, it is easy to get caught up in the idea that the ultimate aim is to win against the other party. In doing so, it can be easy to lose sight of the fact that, in both law and practice, the Court has only one paramount concern and that is the welfare of the child or children involved.

If you are involved in, or considering bringing, Children Act proceedings, it will serve you well to keep this in mind and can help you to make more informed decisions. Ultimately, you should always put the child first and strive to allow for the maximum degree of flexibility when dealing with the other party.

If you would like advice from one of our Family Lawyers please call the team on 0330 822 3451 or request a call back online.