Wednesday, October 10, 2012

Family Lore Clinic: Please explain the welfare principle

I had a comment yesterday from someone in which they asked for an explanation of the 'welfare principle', used by the courts in children proceedings. Unfortunately I had to delete the comment as it breached my commenting rules, but I thought I would still provide an explanation.

The welfare principle is set out in section 1 of the Children Act 1989:
(1) When a court determines any question with respect to—
(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,
the child’s welfare shall be the court’s paramount consideration.
This is the basic principle. However, it should be read in conjunction with the rest of the section:
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(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.
(4) The circumstances are that—
(a) the court is considering whether to make, vary or discharge a section 8 order [i.e. a residence order, contact order, prohibited steps order or specific issue order], and the making, variation or discharge of the order is opposed by any party to the proceedings; or

(b) the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV [i.e. care and supervision orders].
(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.
Along with any human rights considerations, these are the guiding rules in every case involving the upbringing of a child. Note that there is no presumption in favour of mothers - the law does not favour either parent - and that as presently drafted, the law also does not favour any particular outcome. Note also sub-section (3), the 'welfare checklist', which the court must go through before coming to a decision.

Obviously, the principle is about the welfare of the children rather than the parents (a point all too often missed by parents), and the result of its application will vary, depending upon the circumstances of the case.

(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)