There are many misconceptions about what is relevant when the court considers what order or orders to make in relation to a child, and having such a misconception can obviously be damaging to a parent’s case.
It is therefore important to know what factors the court takes into account before making a decision. The factors are set out in what is known as the ‘Welfare Checklist’.
The paramount consideration when a court determines any question with respect to the upbringing of a child is the child’s welfare, and in deciding how the child’s welfare is best served the court will have regard to all of the circumstances of the case, in particular the factors set out in the Checklist.
Those factors are as follows:
1. The ascertainable wishes and feelings of the child concerned. These are considered in the light of the child’s age and understanding, thus they are unlikely to be given much weight by the court if the child is very young. However, as the child get older they will be given greater weight, so that with a much older child their wishes could even be decisive.
2. The child’s physical, emotional and educational needs. This really refers to any special needs that the child may have, rather than their general needs. Examples might be special health needs, or special educational needs.
3. The likely effect on the child of any change in his or her circumstances. This can be an important factor if the court is considering the possibility of the child moving to live with the other parent, or re-introducing contact between the child and a parent, after a long period when there was no contact.
4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant. Note, however, that there is no rule that specifies that a child of a certain age or sex should live with one particular parent.
5. Any harm which the child has suffered or is at risk of suffering – clearly, the court will take into account any harm that a child has suffered at the hands of one parent, or the risk of any such harm occurring in future. Thus, for example, the court might order that any contact between the child and the parent be supervised initially, to minimise the risk of harm.
6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. This is only rarely likely to be relevant, and certainly does not imply any bias towards either mothers or father, but there may be cases in which there may be questions over the capability of a parent.
7. Lastly, the court must consider the range of different types of order available to the court in the proceedings in question. We will not go through the full range of available orders here – suffice to say that the court can make any order that it considers to be appropriate. In particular, it should be noted that the court is not limited to making just the types of order(s) that the parents have applied for.
In addition to the above, the court should also presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.
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