The Children Act 1989 (CA1989) deals with the situation where:
- Agreement cannot be reached between parents or other family members concerning arrangements for the children in terms of upbringing, residence and contact;
- Issuing arising from intervention by the local authority where there is concern for the child’s safety, development or health.
The law in this area was further developed in 2014 with the enactment of section 11 of the Children and Families Act 2014. This new legislation in part, attempts to simplify the court process in respect of contested applications in light of the increasing numbers of litigants in person largely due to the lack of public funding.
The Children Act 1989 sets out the fundamental principle in dealing with issues relating to the upbringing of a child or the administration of a child’s property or any income arising from it that:-
“The child’s welfare shall be the Court’s paramount consideration.”
It is essential that we at Thomas Mansfield family law and our clients remember that the welfare principle is the key to resolving the issues. In the midst of the stresses of family breakdown we must not lose sight of this.
Presumption of parental involvement
The Children and Families Act introduced a rebuttable presumption that involvement of each parent in their child’s life (whether direct or indirect) will benefit the child. This presumption will be rebutted if there is clear evidence that involvement of one or both parents’ in the child’s life will either pose a risk of harm to the child or, will be detrimental to their welfare.
The reasoning behind the presumption of parental involvement is to reinforce the importance of children maintaining relationships with both of their parents following separation and divorce (when it is safe to do so).
When will the Court make an Order?
The principle is that the Court will only make an Order if it considers it will be better for the child. In the course of proceedings a couple may agree about the amount of time the child will spend with each parent. Even though this agreement was reached during court proceedings, in some circumstances, the Judge may not make an order reflecting the parents’ agreement on the basis that it is better for the parties to agree over such matters rather than to rely on an order. This is called the ‘no order principle’. However, sometimes, parents prefer to have an order to form the basis of their agreement from which they can build on by agreement in the future. Further, it may be necessary to make Orders in special cases such as where the child lives with a person who does not have the formal status of a parent or carer. This is because other parties like hospitals or schools may need to ascertain that carer’s status.
Delay must be avoided
It is assumed in Children Act proceedings that delay will prejudice the welfare of the child. Of course, in some cases delay will be necessary such as where expert reports or further investigations are required. If issues are not resolved quickly a child might pass through a phase of development without proper arrangements in place. A delay of this nature could have a long-term impact on the welfare of the child, especially when they are young.
Welfare: points to consider
Section 1 of The Children Act 1989 sets out a checklist of factors that must be taken into account when considering arrangements for a child:-
- The wishes and feelings of the child concerned – taking into account age and understanding;
- The child’s physical, emotional, and educational needs;
- The likely effect of any change of circumstances;
- Age, sex, background and other relevant characteristics;
- Any harm the child has suffered or risk of such harm;
- The capability of the parents (or other relevant person) of meeting the child’s needs;
- What powers the Court has at its disposal.
How does a Court look at the wishes and feelings of the child?
The Court will give the child’s expressed views suitable weight. However, it will have to be borne in line that a child’s views could be influenced by a parent or the desire to please a particular parent. Children do not normally give direct evidence . In appropriate circumstances, the best way of obtaining evidence settling the child’s welfare requirements including their wishes and feelings (where appropriate) is through the Child and Family Court Advisory and Support Service (CAFCASS). A CAFCASS officer will be assigned to a case by the court and will investigate matters, speak with the parents and guardians involved and prepare a report (as directed) for the court.
Child’s physical, emotional and educational needs
The most important factor for the Court to consider is the quality of day to day care offered by each parent in looking after the child’s physical and emotional needs. The Court will try to ensure that both parents have suitable homes through its financial Orders. The level and material comfort will not be a key consideration.
A very important consideration is the emotional ties of the child to their parents and brothers and sisters. The Courts will only reluctantly split up siblings.
Courts do not favour the care of a mother over a father. However, in practice most parents agree that the mother will be the main carer of the children. If one parent is working and the other one caring for the children, the main carer will usually be favoured because of their care experience; this is a less important factor where the children are older and less reliant.
Educational needs are also an important factor. Where one parent moves to a different area disruption in education will be important to take account, especially around exam time.
Effect on the child of a change of circumstances
As a general rule the Courts tend to avoid disruption to the child’s life especially in considering where the child is going to live.
The child’s age, sex, background, any relevant characteristics
Where the child is young it might indeed be considered that their needs will be best met by their mother. Later on the sex of the child may be significant. Other factors such as cultural background, disability, race or religion may be taken into account and difficulty may emerge where the child is from a mixed background in which case the child will try to keep the child in contact with both the backgrounds.
Harm which the child has suffered or is at risk of suffering
Physical, mental, or emotional harm may all be taken into account. Domestic abuse is a factor as the law includes within the definition of harm that suffered from seeing another ill-treated.
The capability of the parents of meeting the child’s needs
It is essential for a Court to consider whether the parent is capable of caring for the child. If a parent has previously harmed a child this will have a negative impact on any application for the child to live with them. Also, where a parent has failed to prevent harm to a child this would also be taken into account.
Exceptionally, religion may be taken into account where extreme views or practices may harm the child.
Where there is a risk of harm a Court may deal with this by attaching conditions to Orders it makes.
Other factors such as whether a parent has a mental or physical disability may be taken into account.
A Court will also take into account factors such as the ability of other people to care for the child including a new partner, grandparents or members of an extended family. It is important to investigate the matter where it is alleged that a new partner or friends of one parent are a risk to the welfare of the child.
Powers of the Court
The Children Act 1989 gives the Court a wide range of powers. An example of an Order a Court might make is where the behaviour of both parents puts the children at risk of harm and an Order is made for the child to be cared for by their grandparents.
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