When parents can’t agree the arrangements for their children (such as where their child will live or how much time he/she will spend with each parent) and family mediation is either not suitable or has broken down, one parent may make a court application under section 8 of the Children Act 1989. For many parents, one of the biggest concerns is what their child’s part will be in the court process and whether he/she will have to go to court to have their views heard.
The welfare checklist
In children proceedings, the child’s welfare is the court’s paramount consideration. When making an order the court has to consider 7 factors set out in section 1 of the Children Act 1989 which is known as the “Welfare Checklist”. These factors are:
1. the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
2. the child’s physical, emotional and educational needs;
3. the likely effect on the child of any change in his/her circumstances;
4. the child’s age, sex, background and any characteristics of his/hers which the court considers relevant;
5. any harm which the child has suffered or is at risk of suffering;
6. how capable each of the child’s parents is of meeting the child’s needs; and
7. the range of powers available to the court under the Act.
Children aged 9 and over may have to attend the first court hearing (depending on which court the case is in) and children of all ages may have to speak to a Cafcass officer (a social worker employed by the Children and Family Court Advisory Support Service). The older and more mature the child (generally, this is from the age of 11 or 12), the more weight the court will give to the child’s wishes and feelings. However, the court has to undertake a balancing act between all the factors listed above and the child’s wishes and feelings are not the court’s sole consideration.
Section 7 Report
In many cases, the Cafcass officer (or independent social worker paid for by the parents) provides what is known as a ‘section 7’ or ‘welfare’ report to the court. Sometimes an abbreviated report, a ‘wishes and feelings report’, may be produced. In either a full or a ‘wishes and feelings’ report the Cafcass officer will meet with the child and report to the court on his or her views about the matter in dispute. If the child is old enough, the Cafcass worker may also suggest that the child writes a letter to the court setting out his/her wishes and feelings. You can find more information about section 7 reports and Cafcass in general on the Cafcass website.
In very limited circumstances a Judge can order that the child should be separately represented at court. In that case, the child is represented by a Guardian to represent their best interests and a solicitor instructed by the Guardian to help the child put across his/her wishes and feelings. This is rare and can only happen in the following circumstances:
1. the section 7 report recommends the child is separately represented;
2. the child has interests which are cannot be represented by either of his/her parents;
3. an older child opposes the proposed course of action in the section 7 report;
4. there is an intractable dispute over where the child lives or how much time he/she spends with either parent;
5. there is implacable hostility shown by one parent to the other which is harming the child;
6. there is an international element to the proceedings;
7. there are complex medical issues or serious allegations of abuse involved; or
8. the proceedings concern more than one child and the welfare of the children is in conflict.
Separate representation of children is the exception rather than the rule and will only occur where one of the above issues is in play and doing so is in the child’s best interests. For most children, their involvement with the court will be limited to speaking with a Cafcass officer and they will never set foot in a court room.
If you need advice on child arrangements our team of specialist family lawyers can assist. Do not hesitate to contact us at firstname.lastname@example.org or on 0203 824 9950.
Written by: Helena Middleton