The Significance of a Child’s Best Interests in Family Court Proceedings

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The Court’s main consideration in cating in the child’s best interests in Family court proceedings is the welfare of the child which is provided for by the ‘Welfare Checklist’. Adele Benjamin, a Paralegal in WSP Solicitors’ Family Law Department, is here to discuss what the Family Court considers in proceedings to determine the child’s best interests.

Assessing and balancing a child’s wishes and feelings in legal proceedings

The Court considers the wishes and feelings of the child, taking into account their age and understanding of the situation. Whilst the Court must consider the child’s wishes and feelings, they do not have to follow them. Generally, a teenager’s views and wishes would carry significant weight. The Court will want to ensure that the child’s wishes are independently ascertained and not purely a reflection of the view of either parent. The Court usually ascertains the wishes and feelings of a child by ordering a Section 7 (Welfare) report which involves the child meeting with a Cafcass officer. It is important to note that even if the child’s views are found to be their own, the Court may decide that the child’s views should not be followed as it would not be in the child’s best interests.

Considering a child’s physical, emotional and educational needs

Whilst the Court takes into account a parent’s ability to provide physical care for the child such as accommodation, financial constraints tend to carry little weight. The Court is primarily concerned with the child’s happiness and security. This being said, if a parent made an application for a child to live with them but was financially unable to provide a home, this may result in the application being refused by the Court.

The Court emphasises that it is the emotional needs of the child that is relevant, not the emotions or rights of the parent.

The Court considers a parent’s general to attitude to school and homework as well as attendance at school.

What is the impact of a change in circumstances for a child?

If the current arrangements are working well, the Court will be unlikely to change them. The Courts are conscious of disrupting a child’s sense of security and normality so will only do so for good reason.

Age, gender, background, and cultural factors in child custody decisions

A child’s age and gender are important factors to consider when deciding which parent the child should live with. There is no presumption that a child of a certain age or gender should live with one parent or the other. Although the Court will take into account the advantages of living with one parent, for example young children staying with their mother.

The Court will also consider a child’s race, culture and religion and who best meets the child’s needs.

Assessing any past and potential harm to the child

The Court will consider any past or future harm which the child has suffered or is at risk of suffering. Harm includes both physical and psychological abuse and has also been interpreted to include potential harm to a child from witnessing abuse on one parent by another.

Evaluating parental capacity and alternative caregivers

The Court will reflect on the conduct, lifestyle and health of the parents in determining their suitability to provide for the child.

There is no presumption that biological parents are better suited to meet the child’s needs. For example, a grandmother may be better able to contribute towards a child’s wellbeing than the child’s mother.

If a parent proposes to share care of the child with another party, their suitability will also be considered. For example, new partners/spouses or other relatives.

Other Factors – Presumption of parental involvement and child-centered decision-making in custody proceedings

The Court will generally consider that the involvement of both parents in a child’s life is important unless given reasons to the contrary.

There is a presumption that the Court will not make an order unless doing so would be a positive change for the child. The Court should provide reasons for why they determine that no order should be made.

The Court is conscious to avoid delays in proceedings where this would be very damaging to a child.

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    Adele Benjamin