The Welfare Checklist

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The Welfare Principle - S1(1) CA 1989

The Welfare Principle is fundamental in child law. The child's welfare shall be the courts paramount consideration when making a decision in any dispute concerning the child's upbring - whether between divorcing parents, parents and LA's etc..

Children Act 1989 - S1: 

"when a court determines any question with respect to:- 

a) the upbringing of the child; or 

b) the administration of the child's property or the application of any income arising from it, 

the child's welfare shall be the courts paramount consideration."

  • The WP will determined any contested proceedings under S8 CA 1989, and it also extends to care proceedgins and related public law orders. The WP is a concept that had been used for many years in cases concerning children and the CA 1989 put this on a statutory footing.
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S11 Children and Families Act 2014

In addition to considering S1(1) - S11 CAF inserted a new provision S1(SA) CA 1989.

The court is now to presume, unless the contrary is shown, that the involvement of the parent in the life of a child will further the child's welfare.

This provision will apply when the court is making or revoking a PR order, or making, varying or discharging a contested s8 order in favour of a parent. 

There is now a clear presumption that children should have a relationship with both parents.

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Is there any conflict between S1 CA and Art 8 ECHR

Potential for conflict - arguement that s1 incompatible with Art 8 (becasue it places the child's welfare as paramount) and Art 8 starting point is that each family member is on an equal footing.

This position was confirmed in Hoppe v Germany [2003] - European Court of Human rights accepted that primacy of the interests of the child.  

Where there are two or more children involved, the court must have regard to the welfare of all and not put the welfare of one above the others - Birmingham City Council v H (No 2) [1993]

NB: the Welfare Principle only applies in issues of upbringing and administration of the child's property. In other situations, the child's welfare is one of a number of factors to be taken into account but it is not the overriding factors. 

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S1(3): The Statutory Check List.

A list of factors that the court will consider in every case under the Children Act, in deciding whether or not it is in the child's best interest.

  • -       Ascertainable wishes and feelings of child in light of years and understanding – is the child Gillick competent?
  • -       Physical, Emotional and educational needs
  • -       Likely effect of any chance in circumstances – the status Quo – Latin to keep things the same.
  • -       Age, sex, background and any other characteristics which are relevant.
  • -       Harm suffered or at risk of suffering
  • -       Capability of each parent (or other relevant person) in meeting child’s needs.
  • -       Range of powers available to the court – just because an application has been made, they do not have to accept it or decline it. They can make a substitutions that they feels is relevant.

NB: court retains discretion to make whatever order it deems appropriate. Even if no application has been made for a particular order. Bear in mind No Order Principle. 

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a) Wishes and Feelings of the Child Concerned

This factor reflects the importance of allowing the child's wishes to be given a place in the decision making process and puts Gillick on a statutory footing. However, judges are aware that children can be coached. Sometimes what a child wants may not be in his best interests. However, the older the child the more likely the court will take account of what he wants.

- Re P (A Minor)(Education: Child's Views): 

Court asked to decided where child should go to school - the child was 14 and mature. He expressed the wish to go to a local day school rather than a private boarding school. The court listened to his wishes. 

The older the child the more persuasive the arguements will be to the court, but they are no automatically following just because the child is older or "Gillick" competent.

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b) Physical, Emotional and Educational Needs.

Here we are focusing on the child and will look at accommodation, medical needs, education, how close the child is to his siblings etc. All aspects of the child's needs are considered. 

The court will consider the circumstances carefull before splitting siblings - to the extent that is unsual to seperate particuarly if they are close in age. Often emotional needs tend to favour the primary carer which often, but not always, is the mother. She will often have a strong bond with the child for no other reason than she has spent more time with her/her. 

  • Matrimonial miscondut is irrelevant unless it impacts on the parent's capacity as a parent, and 
  • One of the needs of a child is that of subling support and the courts are reluctant to seperate brothers and sisters. 

- Adams v Adams [1984]: The girls need to be with their mother - the emotional bond - ouweighed the emotional distress of being seperated from her brother. 

Educational Needs: becomes a factor when the parents' attitude to education is different.

  • May v May: the father obtained 'care and control' of the children aged 8 and 6 because he laid greater emphasis on educational achievement. 
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c) likely effect of any change in his circumstance

This is statutory recognition of the status quo arguement. If the current arrangements are working satisfactorily the court will be very reluctant to interfere. This tends to mean that the person with whom the child is living is usually at a considerable advantage. 

The court will take a view that unless you can show that the current arrangements are not in the child's best interest they will not interfere with it. 

- Re B (Residence Order Status Quo): It is of overwhelming impotance of the continuity of care. Dad had the status quo. Mum went to court and she because the child was in her care that the time, the child should stay with her. The court said no.

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d) Child;s age, sex and background.

This can cover multitude of factors is the child's life. 

  • Age can be crucial - if very young the needs may be best met by the mother. 
  • As the child matures, it matters less which parent cares and the child's view becomes more important. 
  • The child may benefit from being with a parent of the same sex. Argued that a male that is going through puberty, he needs a positive role model of the same sex to further his development. 
  • Background covers religious upbringing, race, nationality, cultural, disability or illness. - Where there is mixed heritage, the court will look at characteristics of both parents.

- Re B and G: the court refused an order to a father and a step-mother because they were scientologists and so held views that the court considered 'immoral and obnoxious'. Sometimes the fact one parent is a Johavah's Witness can sway the court because of the possible conflict if the child needs a blood transfusion.

S22(5) CA: lists factors that the LA must consider when placing children who are in care; religious persuasion, racial origin, cultural background, linguistic background.

Where relevant, these factors will be controversial decisions by some LA's.

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e) Any harm child suffered or at risk of

Covers physical, emotional and mental harm. 

Harm in this context has the same meaning as in Care Proceedings (S31(9)) 

Harm means ill-treatment or the impairmet of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another.

  • If the adult concerned has a drug or alcohol dependency issue, they may not be directly causing harm to the child but it could be impacting on their mental state. 

NB: Adoption and Children Act 2002, extends the definition of harm to include impairment suffered from seeing or hearing ill treatment of others.

Must have evidence of likelihood of harm!

- Re G: if you are going to suggest that there is likelihood or harm, you need to show real evidence. 

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f) Capability of parents meeting child's needs

This could include whether the parent may harm the child - or fails to protect the child from harm.

Could be parent's lifestyle choice of work commitments impact of capability Eg, working long hours or shifts, how are they going to look after the children? How will she pick them up at 3 school, if they dont finish work til 6?

  • parent may have physical or mental illness - eg, disabilities or mental health issues that impact on care of the children.

Will also cover capability of others who may be involved in caring eg, grandparent, new partner. 

Scott v Scott: Residence to the mother was denied when it was discovered that her cohabitant had committed acts of indecency against the child. Furthermore, the fact that one parent now has another partner may sway the court to give residence of the child to a two-parent family rather than remain in a single parent family.

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g) Range of orders available for the court.

This allows the court to consider all of its powers and perhaps grant an order which has not been applied for if it feels that this is the best way to serve the welfare of the child. It encourages the court to think laterally an consider every option - including not making an order at all. 

The court has a wide range of powers under Children Act 1989 

Can make any order if in interests of the child. 

Court can also prevent the party from making repeated applications - S91(4) CA 1989.

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When the checklist applies.

s1(4) states that the courts shall have regard to the check list in all contested S8 order applications and all proceedings for care and supervision orders. 

Delay Detrimental to Child's Welfare. 

  • S1(2) - in proceedings concerning the child's upbringing "any delay in determining the question is likely to prejudice the welfare of the child".
  • S11(1), S32(1) - the court is directed to draw up a timetable in applications for S8 orders and care or supervision orders. 
  • Y v B: it was statd that, to avoid delay, if a case could not be heard in the lower court because of that court's timetable, it should be transferred to the High Court. 

Non-intervention Principle: the "no order presumption"

S1(5) - Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. 

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