Family proceedings and children: The Welfare Checklist

In family proceedings involving children, the Courts must consider the welfare of a child as of paramount concern. The child’s welfare is their priority.

When the family court is making a decision on matters that will affect a child, the courts are required to look at the welfare of the child as the paramount consideration. The welfare checklist consists of seven statutory criteria that the courts must consider under the Children Act 1989 when reaching its decision in cases involving children.

The seven criteria set out in the welfare checklist under s1(3) Children Act 1989 are:

1. The ascertainable wishes and feelings of the child concerned
2. The child’s physical, emotional and educational needs
3. The likely effect on the child if circumstances changed as a result of the court’s decision
4. The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
5. Any harm the child has suffered or maybe at risk of suffering
6. Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
7. The powers available to the court in the given proceedings

The court must consider the wishes and feelings of the child, taking into account the child’s age and level of understanding in the circumstances. This will normally be determined by the Children and Family Court Advisory and Support Service (CAFCASS) or social services, and reported to the court. In some cases, a judge may speak directly with a child to determine their wishes and feelings if this is deemed necessary.

The court will take into account whether or not a child’s wishes and feelings are their own, or whether outside factors may have influenced their decisions. There may also be a conflict of opinion between the parents’/guardians’ views and that of the child. The court will balance the views of the parties concerned, including the views of a child who is of an understanding age and mature enough to form their own opinions.

The court will consider who is in the best position to provide for the child’s emotional, physical and educational needs. A child’s emotional needs can be more difficult to deal with, and the court will consider who is best able to provide for the emotional needs of the child – both short term and long term.

The potential impact of changes to the child’s life will be considered. The courts will aim to make an an order that causes the least disruption to a child’s life, however, this will be balanced against the other factors to be considered.

The court will consider specific issues such as religion, race and culture when making a decision about a child. They may also take the parents’/guardians’ hobbies and lifestyle choices into account if they feel this will impact the child’s life, either now or in future.

The courts will look at the risk of harm to the child. This means immediate risk of harm, as well as the risk of harm in the future. ‘Harm’ includes physical, emotional and mental harm. The courts will weigh up the potential risk of harm to the child in future and make an order as appropriate. An order may include safety measures to protect the child.

The courts will consider how able each parent is to care for the child and to meet their particular needs. This will be subjective and depend on the facts and circumstance of each case – the needs of the child and the abilities of the parents concerned.

The court must weigh up all the factors under the welfare checklist, and consider all available orders within their discretion. It will then make the best order available that is in the best interests of the child.

We strongly advise you to take expert legal advice from specialist family lawyers if you have any concerns about family proceedings involving a child.