Children Act Proceedings: the Welfare Principle

When the family courts in England and Wales are invited to resolve issues affecting children, such as where the children should live or how frequently they should spend time with the non-resident parent, the welfare principle is at the forefront of every decision. The reason the courts approach child arrangements in this way is to ensure that the welfare of the child is put first and ahead of any other factors in a dispute, including the wishes of the parents, which may not always be in the child’s best interest.

What is the Welfare Principle?

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

“When a court determines any question with respect to the upbringing of a child…the child’s welfare shall be the court’s paramount consideration”.

To apply the welfare principle the court will use a checklist which sets out the circumstances for the court to consider. This welfare checklist is detailed in Section 1 (3) of the Children Act 1989 and includes the following key considerations:

1. The ascertainable wishes and feelings of the child concerned in light their age and understanding.

Older, or more mature children can better express their preferences about where they want to live or how much time they wish to spend with each parent. How much weight the court will give to those views will depend on their understanding of their decision.

The court will draw a distinction between a child’s ascertainable wishes and feelings and their expressed wishes and feelings. In disputes where it is alleged that one parent, or a third party, is influencing or coaching the child on what to say, their expressed wishes and feelings may not reflect their actual wishes and feelings. To address this the court will usually direct a Section 7 report to be prepared by Cafcass, the local authority or even an Independent Social Worker. In some cases, the court may also join the child as a party to the proceedings by appointing a children’s guardian to make representations on the child’s behalf. Where children are old enough some judges may speak to children directly in person, or by letter, to understand their wishes.

2. Their physical, emotional and educational needs.

The court will consider factors such as a child’s need for stability and any impact that a change of living arrangements may have on a child’s mental and emotional health. The court will also consider the physical needs of a child and the parent’s ability to meet those needs.

3. The likely effect on the child of any change to their circumstances.

Greater changes to a child’s routine, like where they live or which schools they attend can cause major disruptions to a child’s life. The court will evaluate whether those changes would ultimately benefit the child or cause them harm.

4. The child’s age, sex, background and any characteristics which are relevant.

Individual factors relating to a child’s identity and values are also considered by the court. The court will give weight to a child’s cultural background, religion and belief and who would best promote.

5. Any harm which the child has suffered or is at risk of suffering.

The court will look at any harm that the child has suffered in the past, the likelihood of the child experiencing harm in the future and what steps are to be taken to mitigate that harm.

6. Each parents’ capability to meet the needs of the child, as well as the capability of any relevant individuals.

The court shall assess the ability of parents (or carers) to provide for the child’s wellbeing. This is in terms of both their practical and emotional abilities.

7. The range of powers available to the court.

The court has a huge range of powers when making these decisions and when implementing those powers will consider all options to make a decision that is the most beneficial for the child and the least disruptive.

Conclusion

The welfare principle is a holistic approach which means that cases are considered individually and are tailored to the circumstances of the child and their family. For any parents involved in family disputes, having a clear understanding of the welfare principle can be beneficial when embarking on discussions and reaching decisions in a way that prioritises the child’s wellbeing.

How Pinney Talfourd can help?

If you are facing a dispute over the childcare arrangements or are seeking legal advice early to better understand how the welfare principle may apply to you, please contact a member of our family team to book a free initial 30-minute consultation.