In the realm of UK family law, the ‘Welfare Checklist’ is a fundamental tool utilised by judges when making decisions in relation to a Section 8 Order, as per the Children Act 1989. It has been devised with the aim of ensuring the most beneficial outcomes for children involved in legal disputes. Section 1(3) of the Children Act 1989 outlines a range of factors that the court must take into consideration when making any decision in relation to the child. This article outlines each component of the Welfare Checklist and evaluates its use in legal proceedings.
When Will the Welfare Checklist Be Used?
The Welfare Checklist facilitates a court’s decision-making process in relation to a child. In certain circumstances, the Children Act 1989 makes it an obligatory and fundamental step before a ruling can be made. Here are a few situations in which the Welfare Checklist will be utilised:
Child Arrangement Orders: The Welfare Checklist is considered in scenarios where a court must decide where a child should live or what level of contact they should have with a parent. For instance, a child arrangement order may be sought by divorced parents who cannot come to an agreement on who should primarily care for the child.
Specific Issue Orders: There are certain instances when the guardians of a child disagree on a particular aspect regarding the way their child should be raised. For example, parents may be at loggerheads over where a child should be educated, their level of engagement with religion, or the need for a specific medical treatment. In these scenarios, the court utilises the Welfare Checklist to arrive at a decision.
Prohibited Steps Orders: These orders are put in place to prevent a guardian from taking a specific action in relation to a child. A clear example relates to a parent seeking to move abroad with their child. In such instances, a court will give regard to the Welfare Checklist to evaluate whether said action would be in the child’s best interests.
Care and Supervision Orders: In circumstances where a local authority believes that there is a serious concern for a child’s welfare, the family courts will utilise the Welfare Checklist as a means for deciding whether a child should be placed into foster care or whether it is necessary to implement interventions in relation to a child’s upbringing.
Adoption Orders: When it comes to determining whether a child should be adopted, the court uses the Welfare Checklist to assess the child’s best interests.
Special Guardianship Orders: The Welfare Checklist must be used before making a ruling as to the need for a special guardian.
Keep in mind that these are just a few examples of instances when the Welfare Checklist is used. Its primary goal is to navigate the court as they make decisions that prioritise the child’s best interests.
The Welfare Checklist (Children’s Act 1989) and the Courts
The Welfare Checklist (Childrens Act 1989) outlines a range of factors to be considered during the court’s decision-making process:
“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable 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;
(g) the range of powers available to the court under this Act in the proceedings in question.”
Let’s take a look at what each of these factors really means.
The Ascertainable Wishes and Feelings of the Child
The first factor that the courts consider is the ascertainable wishes and feelings of the child concerned, considering the child’s age and level of understanding. This principle reflects the desire of the UK legal system to respect the child’s autonomy. It also highlights the importance of involving a child in decisions relating to their upbringing.
The older and more mature a child is, the more weight is given to their views. Generally speaking, most judges will find that a child over the age of 12 is able to comprehend and voice an opinion in relation to disputes relating to their care, but each case will be determined individually, and the weight given to a child’s opinion will depend on a judge’s evaluation of the child’s maturity.
The Child’s Physical, Emotional, and Educational Needs
The second component of the welfare checklist relies on an assessment of the physical, emotional, and educational needs of the child. This involves exploring the child’s life and how they might be impacted by the decision at hand. For example, will the child’s engagement with their school and peers be impeded? How are their emotional needs going to be met?
The Likely Effect on the Child of Any Change in Circumstances
Children can find changes particularly difficult and courts will consider the level of impact a particular action may have on said child. For instance, if a parent wants to move house, will that mean a relocation, loss of friendships, or impact on the child’s mental health?
The Child’s Age, Sex, Background, and Any Relevant Characteristics
The court also evaluates the child’s age, sex, background, and any other characteristics the court considers important. This can include their cultural, religious, or ethnic background, or any special needs or illnesses that may be relevant The court aims to make decisions that are sensitive to the child’s individual circumstances and needs.
Any Harm the Child has Suffered or is at Risk of Suffering
Any potential harm or risk of harm to the child will play a significant role in the court’s decision-making process, as a child’s safety is fundamental when seeking to ensure the best interests of the child are being met.
The Capability of Each of the Child’s Parents
A child’s best interests are not being met if the guardians or parents of the child are found to lack capability when it comes to raising the child. As such, courts will assess each parent’s ability to meet the child’s needs, and it could include factors like the parent’s mental and physical health, their living situation, and their existing relationship with the child.
The Range of Powers Available to the Court
Lastly, the court will consider the range of powers available to it under the Children Act. This is to ensure that the court’s decision is proportionate and appropriate for the circumstances at hand.
The Welfare Checklist: Final Thoughts
Ultimately, the Welfare Checklist serves as a comprehensive guidance tool for judges to ensure informed and balanced decisions that protect and promote the well-being of children. By considering the various factors in the Welfare Checklist, the court seeks to make rulings that are in the child’s best interests, ensuring their safety, development, and overall welfare.
As each family’s situation is unique, the application of the Welfare Checklist can vary greatly from case to case. Therefore, if you are involved in a family law dispute concerning children, it is advisable to seek legal advice to understand how these principles might apply to your situation.
