HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON

INFORMATION ON THE WELFARE CHECKLIST IN THE CHILDREN ACT 1989

RESPONSIBILITY OF A LITIGANT IN PERSON

Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.

This information provides an overview on the Welfare Checklist used in Child Arrangement Proceedings

The Welfare Checklist

The overriding consideration of the court in child arrangement cases in family proceedings is the best interests of the child. That consideration is paramount.

To assist the court in deciding the best interest of the child, the court refers itself to the criteria in the Welfare Checklist, which are as follows:

The wishes and feelings of the child (considered in the light of his age and understanding)

The court takes into consideration the wishes and feelings of the child in the decision making process. It is not defined in law at which age the court will begin to listen to the 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. However, it does depend on the individual circumstances of the child in question; the court will assess their maturity and understanding of the situation. 

It is the role of CAFCASS to speak to the child and not the court, to ascertain their wishes and feelings. In exceptional circumstances the Judge may speak to the child themselves but only in so far as to hear from the child and reassure the child and that the court will act in their best interest but not to discuss the case with the child.

It is important for the court to be satisfied that these are indeed the true wishes and feelings of the child and they are not mirroring the views of a parent.

It is important to be aware that the wishes and feelings of the child are viewed in conjunction with other factors, and will not wholly dictate the outcome. 

Child’s physical, emotional and educational needs

The court is required to consider the child’s short term and long-term physical, emotional and educational needs. They will consider which parent is best placed to provide these to the child and this will usually be based on evidence that has been submitted to the court. 

Physical needs tend to be straightforward whereas emotional needs may require more investigation. A child’s needs will change as they become older and therefore the court must be satisfied that the parents can manage these changes and provide stability for the child at the same time. 

The likely effect on the Child of any change in his circumstances

The court must have regard to the potential impact of any change in circumstances on the child.

The court will want to make decisions that will cause the least disruption to a child’s life. An example of this may be where the non-resident parent applies for residence of the child. The court will need to consider the potential impact that the change in residence would cause, i.e. change of school, change of social environment.

Child’s age, sex, background and any characteristics, which the court considers relevant

The court must have regard to consider the child’s age, cultural and religious background and other characteristics, which are specific to the child and the wider family. 

Any harm, which the Child has suffered or is at risk of suffering

The court will examine carefully the harm that the child has suffered and harm that the child is at risk of suffering in the future.

Harm is broadly defined and not limited to ill treatment of a physical kind but also emotional harm, all of which may cause the impairment of health, development and emotional well-being of a child.

The court will weigh up the potential risk to the child and issue an order that reflects the needs of the child. Any order made by the court may include protective measures, which are aimed at safeguarding the child. 

This particular criterion will require the court to examine allegations of domestic abuse. 

The capability of each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

The court will want to ensure that both parents are putting the child first and are able to meet all the child’s needs.

This criterion will therefore require the court to consider the respective accommodation that both parents are able to provide and the extent to which both parents can meet the child’s needs. 

This will be case specific on a case by case basis, and therefore it will depend on the specific needs of the child and the abilities of the parent. 

There is no assumption that a mother is better placed to meet a child’s needs compared to the father as the parents are viewed as a starting point to be equally capable of meeting the child’s needs, however each case will turn on its own circumstances and facts.

The range of powers available to the court

The court will consider every option and can make a wide range of orders, even if they have not been applied for by the parties to ensure the best interest of the child.

An example may be a case for contact but it emerges that the resident parent intends to go abroad on a permanent basis with the child without seeking the consent of the other parent with Parental Responsibility.

The court may therefore think it is appropriate to grant a prohibited steps order preventing the moving parent from leaving the jurisdiction and so forth.