The Court has to determine what child arrangements are made in respect of a child when these cannot be agreed upon by the parents, and the considerations for this decision are set out in the Children Act. The most common issues the Court is asked to decide are where a child is to live and when they are to see the other parent, if there is not a shared care arrangement The Court takes a non-interventionist approach, in that, when a Court is considering whether or not to make one OR more Orders, in respect of a child, 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.
When determining any application for a Child Arrangements Order, the Court has to make reference to the Welfare checklist set out in Section 1 of the Children Act and this covers the following:-
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
- Their physical, emotional and educational needs.
- The likely event on them of any change in their circumstances.
- Their age, sex, background and any characteristics, which the Court considers relevant.
- Any harm which they have suffered or are at risk of suffering.
- How capable each of their parents and any other person in relation to whom the Court considers the question to be relevant, is in meeting their needs.
- The range of powers available to the Court under the Act in the proceedings in question.
There is no specific age at which a child’s wishes and feelings will carry greater weight. Every child is different and there are many factors that have a bearing on their understanding, including their particular maturity and/or whether they may be under the influence of one of their parents. The Court will not however make an Order that is incompatible with a child’s wishes and feelings, where that child is sufficiently old and mature enough to express an informed view, as it will be considered that by(remove) making an order that is not favoured by the child, is not likely to be in the child’s best interests, and the child is likely to vote with their feet in any event. Furthermore, the Court will not entertain making an Order relating to a child who is 16 or over, save where there are exceptional circumstances to do so.
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