The Child's Welfare
In almost every Court case where the Court makes a decision about a child, it is the child's welfare that the Court must consider as the most important thing in reaching that decision.
The Children Act 1989 governs almost all applications that are made about children in the Family Courts and the part that talks about the welfare of children is at Section 1 (which also shows how important it is as it is the first thing spelt out in the Act).
Section 1 of The Children Act 1989
Section 1 of the Children Act 1989 says this:
"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."
The Children Act goes on to define what is meant by the child's welfare. It is often referred to as "The Welfare Checklist" and if you go to Court you may hear the lawyers or the judge talking about this very frequently.
The Welfare Checklist
The Children Act sets out what the Court must pay particular attention to when considering a child's welfare. Those things are:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) 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;
(g) the range of powers available to the court under this Act in the proceedings in question.
What does this mean?
The most important thing to understand is that it means that the Court is not there to do what either parent wants, but to decide what it thinks is best for the child. It will listen to what each parent has to say but will not necessarily agree with one or other parent.
It is useful to know this. When you are thinking about going to Court it is helpful to think about why what you would like to happen is best for the child, not best for you. I meet many parents who talk about their 'rights'. Generally speaking a parent who goes to Court talking about their rights as opposed to what is best for the child is not approaching the matter in a way that the Court will think about it and can come across, whether they mean to or not, as someone who is thinking more of themselves than the child concerned.
It is correct to say that parents do have 'rights' but where those conflict with what is best for a child then the child's welfare wins! It is helpful to get into the habit of talking about things from the point of view of the child and not you, the adult.
So, when a Court decided which adults a child should spend time with (access or contact) or with whom a child should live (custody or residence) it will make those decisions by considering the Welfare Checklist. When you look at other pages on this website, it is helpful to keep in mind that everything that is described about Family Law and children ultimately comes back to this one thing - the child's welfare is paramount.
When preparing statements or thinking about what to say to the Court it is helpful to look at the Welfare Checklist and think about each part. If you can say how what you want to happen fits with what is best for the child in each heading, then you have a good structure for what you want to say.
There is something else in Section 1 at subsection (2). It states that generally delaying making a decision is not in the child's welfare interests.
This means that a Court is not meant to take ages to make a decision although often that does not seem to be the case. However, in general judges will be reluctant to let cases go on and on forever.
The 'No Order' Principle
Section 1 subsection (5) of The Children Act 1989 says that a Court should not make an order unless it is better for the child to make the order.
In other words, the Court should not interfere with a child's life (and the parents) unless doing so would be better for the child. So for example, if you have agreed where a child will live and who he or she will see, how often etc and it is all working fine, there is not point in going to Court to get an order unless it can be shown that the order would in some way make the child's life better.
The Children Act 1989
You can see a complete copy Section 1 of The Children Act 1989 (and the rest of the Act) by going to the Government's legistation website.