Most parents who are separating will not have to go anywhere near a court to decide on the arrangements for their children’s care. There is a whole range of options available to you to reach an agreement, including (but not limited to) mediation, discussions between you and the other parent – or discussions supported by lawyers. However, even in those instances, separating parents will need to bear in mind how a court would approach decisions for their children’s care.
When a court makes a decision about a child, “the child’s welfare shall be the court’s paramount consideration”. This is taken from the Children Act 1989. It is often termed the ‘paramountcy principle’.
What considerations are relevant to a child’s welfare?
For this, the court will turn to ‘the welfare checklist’, which is also taken from the Children Act 1989.
The welfare checklist comprises:
- the ascertainable wishes and feelings of the child in light of his/her age and understanding
The older a child is, the more weight will be given to his/her views about decisions that will affect them – such as where they are to live or go to school. This is assessed subjectively, which means it depends on the particular child and their level of maturity, understanding and ability to articulate their views.
In a court context, a child will meet with a Cafcass officer or an independent social worker who will ascertain their wishes and feelings. For separating parents who are making decisions for their children’s arrangements away from court and want to understand their child’s views, they can agree to child inclusive mediation (“CIM”).
CIM offers an opportunity for children to be consulted confidentially by a mediator on the decisions their parents are making about their future, in a sensitive and age-appropriate way. Children are not in the room with their parents, and they are not the decision makers. However, the mediator brings the child’s “voice” into the room to inform the parents’ decisions.
Click here for a video with more information about how Child Inclusive Mediation works.
- his/her physical, emotional and educational needs
In addition, a child may also have particular learning needs, disabilities or health conditions that need to be catered for, which would be relevant here. For example, a child with ADHD or autism may need particular support at home and/or school that needs to be factored into decisions about their care arrangements or their education.
- the likely effect of any change in his/her circumstances
If the proposed arrangements are substantially different to the arrangements the child is used to, it may be that such a change would not be considered in his or her best interests. Or it could be that thought has to be given as to how to reduce the impact of any change to the current routine to help the child adapt well to it.
- age, sex, background and any other characteristics the court considers relevant
For example, a younger child is more likely to need shorter and more frequent time with each of their parents, while older children will generally cope better with longer stretches away from the other parent.
A child’s religious upbringing, race and/or cultural background – or anything that relates to their identity and heritage – will also be relevant.
- any harm the child has suffered or is at risk of suffering
This encompasses emotional, mental and physical harm – whether it is something that the child has experienced directly or he/she has witnessed or experienced the effects of.
- how capable each of the parents is of meeting the child’s needs
A child will need to have their needs met by the people in whose care they are in, and the court will look to each parent’s ability to do this.
- the range of the court’s powers
This means that the court has to consider the full ambit of orders it could make in relation to a child – be it a child arrangements order, or a prohibited steps or specific issue order.
No one factor in the welfare checklist has more importance over any of the others and the court is required to carry out a balancing act of all the above when deciding what will be in a child’s best interests.
Given the current (and growing) delays in the court system, avoiding those delays by fully engaging with non-court dispute resolution (NCDR) options can help reduce uncertainty for children and is therefore often in their best interests. While a court can ultimately provide a final decision about what arrangements are best for a child, the time it takes to reach that decision can itself be challenging for children (and their parents).
Where parents can find ways to work together to reach practical, child-focused agreements outside of court, this can provide children with greater stability and certainty sooner.
Selena advises on a wide range of issues associated with the breakdown of marriage and relationships, including complex children and financial matters. Selena’s children cases often involve multi-layered child arrangement issues, including those where the most serious allegations have been made against parents. On financial matters, she assists clients at all stages of their divorce or separation with an approach tailored to their needs and circumstances – be it engaging in negotiation, alternative dispute resolution or court proceedings. Selena is also a qualified mediator working towards accreditation.
