There are many factors that influence a court’s decision when making a care arrangements order, in the event that the parents cannot agree and one or other of them is obliged to make an application to the Court. These factors form the “Welfare Checklist” as set out in Section 1 of the Children Act 1989. These prioritise the child’s welfare, and in the application of each one of these factors, a Court strives to promote the best interests and, ultimately, the well-being of the child or children involved. The summary below describes and explains the factors making up the Welfare Checklist and how these may be applied;
Primary consideration from the court in respect of child arrangemets:
When courts are tasked with making decisions regarding child arrangements, the paramount consideration is always the welfare and best interests of the children. The care arrangements are determined based on their potential impact on the child’s physical, emotional, educational and psychological well-being, and needs.
Quality of relationships and parenting for separating parents:
The quality of the relationship between the child and each parent and the parents respective parenting abilities are also key factors considered by the court. Care arrangements that foster positive and meaningful relationships are generally favoured, as they contribute to the child’s sense of stability, security, and identity. Conversely if there are safeguarding issues, these need to be identified and the care arrangements modified to minimise these, for the protection of the child
Consistency and stability for children following parent separation:
Courts recognise the importance of consistency and stability in a child’s life. Care arrangements that provide a regular and predictable schedule, are favoured, and considered to be beneficial for a child’s overall well-being. It is for this reason that courts like to maintain the status quo as it is considered that change can have an adverse and disruptive effect on a child, save where absolutely necessary, and there is a positive benefit. A court must for example consider the impact on a child, of a change of residence, such as change of school, change of social environment, removal from close proximity to friendship groups etc.
Child’s wishes and feelings regarding their care:
The court may take into account the wishes and feelings of the child, particularly as they grow older and mature. Children as young as four of five can be spoken to, by the representative from CAFCASS (The Child and Family Court Advisory and Support Service) who is appointed by the Court, but it will be fully appreciated that a child of such a young age is clearly limited in terms of their communication, or being able to form a viewpoint on what is best for them. It is not defined in law at which age the court will begin to listen to a child, but the court will tend to place more weight on a child’s wishes and feelings from the age of 11 or 12 onwards. Whilst the child’s views are not determinative, they are given due consideration and may influence court decisions regarding care arrangements.
Parental co-operation:
The level of cooperation and communication between parents (or relevant family members) is another crucial factor considered by the court, in determining what care arrangement will be appropriate and the level of parental contact during handovers. A shared care arrangements will be considered viable and realistic in a situation in which the parents are conciliatory and co-operative. This may, however, be detrimental to a child in a situation where there is high conflict between the parents.
Risk assessment and safeguarding for children:
Courts conduct thorough risk assessments to identify any potential risks or concerns associated with child care arrangements. Safeguarding measures are implemented to mitigate risks and ensure the child’s safety and well-being are prioritized at all times. At the very start of a case a CAFCASS officer is appointed to prepare a safeguarding letter, making police and local authority checks on the parents and family and reporting back to the Court to highlight any preliminary concerns.
A child’s age, sex and background:
Courts consider a child’s age, sex, cultural and religious background and any other characteristics which are specific to that child and the wider family. Relevant professionals can be involved in the case to inform their decisions regarding the care arrangements, including assessments by social workers where there has been local authority involvement, psychologists, or other specialists to assess the child’s needs and circumstances. The court can also direct a full report from the CAFCASS officer, where deemed to be appropriate.
Best interests principle:
Ultimately, the court’s decision regarding contact arrangements is guided by the overarching principle of promoting the child’s best interests. Care arrangements that are deemed to best serve the child’s safety, welfare and development are prioritised in court determinations.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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