How Court decides Children cases; Section 8 or Welfare Checklist
Section 1 of the Children Act 1989 sets out the core principles which are used to decide cases
These are the Paramountcy Principle, the No Order Principle and the Welfare Checklist.
The Paramountcy Principle
I have reproduced the Section here in Olive italics; my notes are in normal type and grey.
What Section 1 says is that;
(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 Paramountcy Principle (I have emboldened the key part)
The Oxford English Dictionary Online defines Paramount;
- more important than anything else; supreme:
- the interests of the child are of paramount importance
The Delay Principle
Section 1 continues with the delay principle;
(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.
Again, I have emboldened the main point. The delay principle has been increasingly important in recent years. The Courts are making very real efforts to reduce the length of time cases take. This is both in Social Services cases and those between parents and others.
Care Cases used to take on average over a year (only 2 years ago) now the Courts expect cases to be finished in 26 weeks. Similar efforts are being made in private law cases. This change is significant in how cases should be prepared and advice from experienced practitioners should be sought on case preparation.
The Welfare Checklist
Section 1 then continues with the Welfare Checklist. These are the factors the Court will take into account when deciding how to make decisions under the Paramountcy principle.
(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, 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.
None of the factors in the Welfare checklist start as any more important than the others. The Court will apply the factors in the checklist to the children and the circumstances of the case and in doing so some will emerge as more important. For example, the wishes of a mature and sensible 14 year old will be more significant than those of a 3 year old.
The No Order Principle
Then finally we have the No Order Principle;
(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.
Which means that after a good mediation process, with the parents getting on well, there is no need for a Court Order (although having a plan in writing can still be helpful). Sometimes a Shared Residence Order can be helpful, to confirm the importance of both parties roles.
Generally, the more an arrangement is defined in an order, the more it goes against the idea that the best arrangements are ones which are agreed by parents who are getting on and who are reliable and able to be flexible. Orders made by the Court can be very closely defined.
Again this is an area where getting good advice is a good thing. After that, how any case is progressed can make a significant difference to the long term outcome.