4. Guiding Principles of the Children Act 1989 PDF

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PRIVATE CHILDREN LAW Chp. 2 and 13.

Guiding Principles of the Children Act 1989 (1) Welfare Principle: [13.4]  S1(1) CA 1989 states: ‘When a court determines any question with respect to – a) The upbringing of a child; or b) The administration of the child’s property or the application of any income arising from it, The child’s welfare shall be the court’s paramount consideration. Human Rights Act 1998 Childs interests are paramount Parental Involvement

Art. 8: Right to respect for private and family life:  Unlike s1(1) which provides the child’s welfare as paramount, every family member under Art.8 is on equal footing  ECHR has accepted the primacy of the interests of the child (Hoppe v Germany [2003])

The Children and Families Act 2014:  Introduced a new presumption when considering making, varying or discharging S8 order/special guardianship order + when making parental responsibility orders: (2A) ‘that the involvement of each parent in the life of the child will further the child’s welfare’

Checklist of Factors to be taken into Account in Applying the ‘Welfare Principle’: Statutory Checklist [13.5]  S1(3) CA 1989: Directs the court to 7 factors when applying the ‘Welfare Principle’  Aim: o Create a consistent approach/ framework when making decisions o Provided a minimum to be used in each case o Non-exhaustive 7 x Statutory Checklist Factors Ascertainable wishes and feelings of the child concerned S1(3)(a)

 ‘A child is a person and not an object of concern’ (Lord Justice Butler-Sloss) o If a child is to respect the law, then the law should respect them  Maturity and sensibility will be considered o Though there is no age threshold for this consideration (S v S (Child Abduction: Child’s Views) [1992]) o Gillick Case  Child’s wish does not always take precedence if it is not in their best interests

The child’s physical, emotional and educational needs

S1(3)(b)

The likely effect on the child of any change in circumstances

 Great emphasis on the welfare report provided by the children and family reporter – CAFCASS  The child may need separate legal representation Presumption in favour of the child remaining with his natural parents (Re H (A Minor) (Custody: Interim Care and Control) [1991])  This factor focuses on: a) Accommodation; b) Medical needs; and c) Education; as well as d) Closeness to siblings and others with whom he may lose touch with the order  Material advantages offer little weight i.e. if one parent is richer  Aim to keep siblings together where possible NB: Skype etc. makes lack of direct contact ‘less drastic’ on older children (something to consider)  Court will look to maintain the status quo if it working for the child (Allington v Allington [1985])  This puts the person whom the child is currently living with at a significant advantage, and they may attempt to delay proceedings – this is dealt with by the act: o ‘any delay is likely to prejudice the welfare of the child’ (CA 1989, s 1(2))

S1(3)(c) The child’s age, sex, background and any characteristics of the child which the court considers relevant

 Age is a highly important factor, as is the sex o Younger babies tend to need to be with the mother (Re W (A Minor));  But not always – Re H (A minor) – Dad given custody of 2 year old girl  Background is particularly difficult with the needs of a mixed race child o Court will look at how the child has been brought up and the influence of each culture, and make appropriate arrangements (Re P (Adoption)).

S1(3)(d) Any harm that the child has suffered or is at risk of suffering S1(3)(e)

 Covers past and future harm to the child (physical and psychological)  Also harm cause by not seeing both parents (Re S (Minors: Access) [1990]) o Contact is the right of the child not of the parent

Capability of the parent’s (or other person) in meeting the child’s needs

S1(3)(f)

The range of powers available to the court under this Act in the proceedings in question

 The parent or other proposed carers ability to care for the child  Conduct will be considered i.e. criminal record There is no presumption as such that it is better for the child to live with his natural parent over e.g. the grandparent (Re G [2006]) Factors include: a) If the parent works; b) Parents lifestyle and sexual orientation (i) Issues of homosexuality and lesbianism can affect the child (ii) Less weigh attached to this now due to changing social standards c) If the parent suffers any mental or physical illness which could result in long-term hospitalisation d) Religion (especially if it could be harmful to the child) e) If a second person shares the parents’ home, their capabilities will be considered also (new partner, friends, relatives etc.)  Encourages the court to think laterally and consider every option open to it, including that of not making an order at all  Will consider – (a) No order presumption (s1(5); and (b) No delay (s1(6))

S1(3)(g)

(2) The ‘No Order’ Presumption: s1(5) - [13.6]  S1(5) CA 1989 states: ‘Court shall not make an order unless it considers that doing so would be better for the child than making no order at all’  Aim: o To discourage unnecessary court orders; and o Reduce bitterness felt by a parent who may feel he has ‘lost’ if the order allows the child to live with the other parent, or allow him limited contact

(3) No Delay Principle: s1(6) - [13.7]     

S1(2) CA 1989 states: ‘The court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child’ Delay creates uncertainty for the child Also harms the relationship between the parties, and effects future co-operation Inappropriate delay may also now be a breach of Article 6 of the ECHR (the right to a hearing within a reasonable time) Sometimes delay = beneficial – i.e. adjournment to see how child is settling down in new arrangement...