Parents often hear the phrase ‘best interests of the children’ but it can be difficult to understand exactly what those best interests are. The Welfare Checklist provides guidance to professionals, including the court, as to how the factors considered when considering the best interests of children. The aim of this article is to explain each of those factors to help you better understand how the court make their decisions.
A – ‘The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’
If a child is old enough to voice their feelings, the court will want to hear from them. Of course, the court are mindful that particularly young children may not fully understand proceedings and will appreciate their wishes may need to be considered alongside the advice of Cafcass.
Usually it will be Cafcass who speak with a child to get their view, often as part of a Section 7 Report.
Whilst the wishes and feelings of a child are paramount, the advice of professionals also needs to be considered. For example, a child may express a wish to live with their mother as there are no rules and they can eat whatever they want, but in the view of professionals and the court, that may not be in the child’s best interests. In addition, a child may mirror the view of one parent which if deemed to be purposeful, will need to be investigated by the court.
B – ‘His physical, emotional and educational needs’
It is imperative that any additional needs of a child are highlighted and that both parents understand the support needed. A child with a physical disability may require modifications to their room or a child with learning difficulties may need additional help after school. The court will consider if both parents are able to offer the support needed or perhaps who is best placed to offer that support.
C –‘The likely effect on him of any change in his circumstances’
The court will want to ensure stability for a child continues wherever possible. A good example are cases where a parent may wish to relocate as this tends to have the biggest effect on a child due to a change of school.
However, this factor is also relevant when dealing with contact arrangements. One parent may live a considerable distance from a child’s school in which case, weekday overnight contact might not be advisable.
D – ‘His age, sex, background and any characteristics of his which the court considers relevant’
Naturally, the court will consider the age of a child, their gender and characteristics such as culture or religious beliefs. Sadly, some parents may not be supportive of a child’s religious or cultural beliefs in which case, a court would be asked to consider if contact with that parent is in the child’s best interests.
E –‘Any harm which he has suffered or is at risk of suffering’
This factor is particularly considered in cases where domestic abuse is or has been present. If a parent is found to be a perpetrator of abuse, the court may consider if contact with that parent is safe or if a child will be exposed to further domestic abuse. In other cases, it may be a protective order needs to be made to prevent a child from coming into contact with a dangerous family member.
Harm is a vast term and does not only relate to a physical risk. For example, if a parent is found to be alienating a child the court may consider measures such as a change of residency. The court take the view emotional harm is just as dangerous as physical harm.
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’
The court will always put the needs of a child first and expect parents to do the same. If one parent is not acting in a child-focused manner, this may raise questions as to whether they can properly meet the child’s needs.
This factor is also considered when looking at basic needs such as accommodation or employment. A parent who works unsociable hours or does not have space for a child to stay overnight may not be deemed to be able to meet that child’s needs. In some cases, one parent may not work at all so it is logical for them to have care of the child for the majority rather than being placed in a childcare facility.
G – ‘The range of powers available to the court under this Act in the proceedings in question.’
This factor reminds the court that they have the power to make an order they deem necessary, even if it has not been applied for. This ensures the court can act protectively and punctually. For example, if a parent applies for contact with a child and their partner is found to pose a risk, the court may make a prohibited steps order preventing the partner from coming into contact with the child.
Our team at E J Coombs are family law specialists, well versed in the Welfare Checklist factors. If you have questions about this article, or family proceedings in general, do not hesitate to contact us.
