Family Law Welfare Principle
The Children’s Act 1989 provides a number of guidelines that relate to the upbringing of a child or the administration of their property under family law welfare principle. In all situations however, the welfare of the child should be of paramount importance.
When granting any order, the welfare of the child should come first. This is applicable in both family law and criminal proceedings. It should be noted however that consideration should be given to welfare but it is not a paramount importance.
Application of the Principle
In a legal sense this relates to a variety of situations when the court is overseeing a decision that relates to the upbringing of a child or the administration of their property under family law welfare principle. The principle cannot be applied when the court is considering an application for a contact or residence order even though these orders can be made in relation to a child.
There are several situations when the welfare checklist would need to be considered including:
- If the court is deciding on whether to issue, vary or discharge a Section 8 Order and the action is being opposed by another party
- When the court is considering whether to issue, vary or discharge an order under Part 4 usually a special guardianship order
There is nothing that would prevent a court from applying the principle situations other than the orders outlined above, but it is compulsory when the order falls into these categories. When it comes to family proceedings, a child is defined as a person who is under 18 years of age, and in this instance, the principle must always be applied.
What is the welfare checklist?
The meaning of under family law welfare principle has not been defined by the Children Act 1989, however, guidance is provided in the form of a checklist, which identifies relevant considerations which are to take place.
There are seven key welfare principles that the court must take into consideration:
- The feelings and wishes of the child
- The educational, physical and emotional needs of the child
- How the court’s decision may affect the child if there was a change in their circumstances
- The child’s background and any other characteristics that would play a key role in the decision of the court
- Any harm that the child has suffered or may be suffering now or in the future
- The capacity of the child’s parents to meet the needs of the child
- What powers the Court has in the proceedings for each welfare case
These principles provide greater consistency throughout the country and they aim to create certainty when dealing in family law. This helps legal professionals and the involved parties identify what issues affect the cases that they are managing. Failure to comply with these principles could result in an appeal because the process was not satisfactorily followed through.
There are further provisions outlined in The Children Act which detail when the court is deciding whether or not to grant an order, unless it considers that the order would be better for the child. The court must be sufficiently assured that the order being discussed will actually benefit the child more than if the order was not granted. This is referred to as the ‘no order principle’.
Another important element and one which is of great relevance when dealing with issues relating to children is that of time. In family law, there is a general consensus that issues should be resolved as swiftly as possible. Proceedings concerning children should not be overly lengthy or drawn out for a longer time than necessary.
This is because, the more time a child is in an environment that raises concern while waiting for the outcome of proceedings, the more likely it will be for them to be removed from the home using an Emergency Protection Order. This is in addition to any further distress or suffering that the child may experience in the meantime.
About the Author
This article was written by a member of the Expert Answers team and posted by Lloyd Barrett, Admin & Customer Services Manager for online advice service Expert Answers. Expert Answers provides legal advice to users in the UK who post a question on their secure platform.