The welfare principle in family law

What is the welfare principle? 

Whenever a court is dealing with proceedings which relate to the child’s upbringing or the administration of the child’s property, the Children Act 1989 governs that the court’s paramount consideration shall lie with the welfare of the child.

Paramount in those situations means that the welfare of the child should come before and above any other consideration in deciding whether to make an order.

A similar principle finds application in criminal proceedings, although it is important to emphasise that in criminal the welfare is a necessary consideration but not a paramount consideration. For purposes here, the focus of consideration is exclusively on the family aspect of the welfare principle.

What is the application of the principle?

The application of the principle becomes relevant in a wide range of situations whenever court is dealing with issues regarding upbringing of the child or the administration of the child’s property. It is important to note that maintenance is excluded from the definition of upbringing. Further, the principle does not apply when the court is concerned with an application for leave to apply for a contact or residence order, even though those orders themselves could then be made in respect of the child.

There are further circumstances defined as to when the welfare checklist would be of relevant consideration to the trial judge and those include: whenever a court is considering whether to make, vary or discharge a section 8 order (including contact and residence orders) and such action is opposed by the other party, or when the court is considering whether to make, vary or discharge an order under Part IV (a special guardianship order).

In practice, there is nothing to prevent a court from applying the principle to situations other than the orders specified above but it is mandatory for the proceedings in those specified categories. 

In family proceedings a child is defined as a person under the age of 18 and therefore, it is for those persons that the principle is always applicable.

What is the welfare checklist?

The meaning of welfare has not been defined by the Children Act 1989, however, guidance is provided in the form of a checklist, which identifies relevant considerations which are to take place. 

In the circumstances mentioned above, a court shall have regard in particular to:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

  2. his physical, emotional and educational needs;

  3. the likely effect on him of any change in his circumstances;

  4. his age, sex, background and any characteristics of his which the court considers relevant;

  5. any harm which he has suffered or is at risk of suffering;

  6. 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;

  7. the range of powers available to the court under this Act in the proceedings in question.

The principles are aimed to allow the courts to achieve consistency across the country as well as establishing certainty in the area. This will in turn help the legal advisers and assist the parties to focus upon the issues that affect their children.

Failure to run through those principles when a court is reaching a decision could provide a basis for the unsatisfied party to appeal against that decision.

What are the other considerations for the courts? 

The Children Act further provides that whenever a court is considering whether to make an order or not, 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. Therefore, the court must be assured that there will actually be a benefit to the child if the order was made. This is also commonly referred to as the no order principle. 

Further, important consideration of great relevance when dealing with issues involving children, is the time factor. There is a general attitude in family law that issues should be resolved as soon as possible and an even greater urgency could be seen when children are involved.

The reason behind it, is that the more time the child spends in a particular home whilst waiting for the outcome of the proceedings, the more unlikely it is for him to be moved from that home. This is in light of the considerable distress involved with changing residence for a person of young age if they have already settled down in one place. Therefore, it is commonly seen that delay is prejudicial