What the courts can do
Where the parents’ relationship breaks down and they cannot agree who a child should live with, or what contact one parent should have, or there is disagreement over other issues relating to any children, an application to court may need to be made.
When the court is asked to make an order, it will be guided by the provisions of the Children Act 1989 which sets out what orders can be made.
What are the general principles of the Children Act 1989?
Section 1 of the Children Act (CA) sets out three general principles:
- The welfare of the child is paramount;
- Delay is likely to prejudice the welfare of the child;
- The court shall not make an order unless to do so would be better for the child than making no order (the ‘no order’ principle).
How important is the ‘welfare principle’?
The welfare principle under Section 1 is the overarching principle that applies to all proceedings under the CA. The CA states that “when a court determines any question with respect to the upbringing of a child; or 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”.
Avoiding delay is important in relation to the welfare principle. The CA states that “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”.
The ‘no order’ principle is that “the court … 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”.
In applying the welfare principle, the court will consider a checklist of factors set out in the CA, including:
- The child’s wishes and feelings: the older the child, the greater the weight given to them;
- Their physical, emotional and educational needs;
- The likely effect on the child of any change in their circumstances;
- The age, sex, background and characteristics of the child which the court thinks is relevant;
- Any harm the child has suffered or is at risk of suffering;
- How capable the child’s parents are in meeting the child’s needs.
Given that the welfare of the child is paramount, what orders are available to the courts when a parent makes an application under the CA?
For more information on:
- Section 8 orders
- Residence orders
- Contact orders
- Prohibited steps orders
- Specific issue orders