The welfare principle in family law

What is the welfare principle?

When a court is dealing with proceedings relating to a child’s upbringing or the administration of the child’s property (or the application of any income arising from it for the child’s welfare), the Children Act 1989 (CA 1989) dictates that the court’s paramount consideration shall lie with the welfare of the child.

In family proceedings a child is defined as a person under the age of 18. Upbringing means the bringing up, care for, treatment, education and instruction of the child Re X (A Child)(Injunctions Restraining Publications) (2001). Paramount means the welfare of the child should come before and above any other consideration in deciding whether to make an order (J v C (1970)).

What is the welfare checklist?

Welfare is not defined in CA 1989, but s 1(3) lists of factors which a judge should consider when deciding what is in the child’s welfare includes:

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • their physical, emotional and educational needs;
  • the likely effect on them and any change in their circumstances;
  • their age, sex, background and any characteristics of theirs which the court considers relevant;
  • any harm they have suffered or are at risk of suffering;
  • how capable each of their parents, and any other person in relation to which the court considers the question relevant, is of meeting their needs;
  • the range of powers available to the court under CA 1989 in the proceedings in question.

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 is the application of the welfare principle?

The principle is only applied where the court is dealing with issues regarding upbringing of the child or the administration of the child’s property. Other circumstances in which the welfare checklist would be of relevant consideration to the judge include:

  • whenever a court is considering whether to make, vary or discharge a s 8 order (eg, a contact order) and such action is opposed by the other party;
  • when the court is considering whether to make, vary or discharge an order under Pt IV of CA 1989 (a special guardianship order).

Matters excluded from the welfare principle include:

  • issues of maintenance;
  • where the court is deciding whether to send a parent to prison for breach of a court order connected to the child;
  • when the court is deciding whether to grant an adult leave to apply for s 8 order (the principle does apply, however, where a child is seeking leave to bring a s 8 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.

Other considerations for the courts

CA 1989, s 1(5), provides that when a court is considering whether to make an order or not, it shall not make the order 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’.

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. An even greater urgency can be seen when children are involved: changing residence is distressing enough for child; the longer the delay, the more settled they become and the more distressing it is to move.