When parents separate, child arrangements need to be considered. When an agreement cannot be reached, it often falls to the court to make a child arrangements order. The basis for any decision is the welfare checklist (Section 1(3) Children Act 1989).
The court considers:
- The ascertainable wishes and feelings of the child:
- The court will take into account the child’s age and level of understanding. The court will weigh the child’s wishes alongside other relevant factors to determine what is in their best interests.
- Physical, emotional and educational needs:
- Physical: appropriate housing, clothing, medical care, protection from harm.
- Emotional: child’s security, stability and consistency, impact of any conflict between the parents.
- Educational: continuity of schooling, support, attendance, any additional needs.
- The court will assess how well each parent can meet these needs both now and in the future.
- Likely effect on the child of any change in circumstances:
- The level of disruption will be considered by the court. For example, a proposed relocation may be scrutinised if it would significantly affect the child’s stability and relationships.
- Age, sex, background and any characteristics which the court considers relevant:
- This includes a child’s cultural background and religion, or special educational needs.
- Any harm the child has suffered or is at risk of suffering:
- For instance, where there are allegations of domestic abuse, the court may investigate this to ensure any arrangements are safe for the child.
- How capable the parents are at meeting the child’s needs:
- The court will assess how capable each parent is at meeting the child’s needs.
- The range of powers available to the court:
- The court will consider the different orders it can make and decide based on the child’s welfare needs.
Key Principles:
In addition to the welfare checklist, the court is guided by a number of overarching principles:
- No Order Principle:
- The court will only make an order if it considers that doing so is better for the child than no order at all.
- Presumption of Parental Involvement:
- Unless there is evidence to the contrary, the court recognises that a child benefits from the involvement of both parents in their life, if safe.
- Delay Principle:
- Any delay is likely to be prejudicial to the child and therefore cases should be dealt with as efficiently as possible.
The court balances all relevant considerations to reach a decision tailored to the individual child. There is a common misconception that the court favours the mother in these proceedings. This is not true. The court does not begin with any presumption that one parent is more important than the other. Its sole focus is on the best interests of the child.
For assistance with child arrangements proceedings, please contact clerks@anvilchambers.co.uk