The Welfare Principle and Welfare Checklist PDF

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Seminar 17 1. Section 1(1) of the Children Act 1989 reads as follows: ‘When a court determines any question with respect to – (a) The upbringing of a child; or (b) The administration of a child’s property or the application of any income arising from it, The child’s welfare shall be the court’s paramount consideration.’ Which words in this section do you consider to be of particular significance? Give reasons for your answer. 

Court- It decides who can make the decision. It only applies to ‘a court’ . It does not strictly apply to any other decision maker whether a private person

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Child- This word is what the Children Act is all about. It is the key word in the act therefore is of most significance and needs to be described. Section 105 CA 1989- A child under the age of 18

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Upbringing- How the child should be treated. This is described, as having ‘paramount consideration’ therefore must be significant. Section 105 CA 1989 says ‘the care of the child but not his maintenance’.

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Welfare- This is also one of the most important words. As it says in the statute, this word is of ‘paramount consideration’ therefore it is very important. This is not defined. ‘In the child’s best interest’

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Paramount- This word means supreme, so the fact that ‘welfare’ is being described as this means that it has significant importance. J v C- Lord McDermott

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To what extent are the welfare principle and the accompanying checklist contained in section 1 of the Children Act 1989 helpful in the resolution of private law disputes concerning the upbringing of children? What, if any, criticisms can be made against the welfare principle? The welfare principle is the fundamental basis of the welfare checklist!! 

Court- It decides who can make the decision. It only applies to ‘a court’ . It does not strictly apply to any other decision maker whether a private person



Child- This word is what the Children Act is all about. It is the key word in the act therefore is of most significance and needs to be described. Section 105 CA 1989- A child under the age of 18



Upbringing- How the child should be treated. This is described, as having ‘paramount consideration’ therefore must be significant. Section 105 CA 1989 says ‘the care of the child but not his maintenance’.



Welfare- This is also one of the most important words. As it says in the statute, this word is of ‘paramount consideration’ therefore it is very important. This is not defined. ‘In the child’s best interest’

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Paramount- This word means supreme, so the fact that ‘welfare’ is being described as this means that it has significant importance. J v C- Lord McDermott

Private law order is found under Section 8: (specific issue order, prohibited steps Order and child arrangement order)

Why the welfare principle and the checklist is helpful: It is one of the most important and well known principles in English law- Understood by the everyday person It is very flexible It comes with the checklist - It is a LIST of factors that should help the court exercise its discretion about the application of the welfare principle- The list of factors is not exhaustive S.14 (a)  Where a case is contested you look to this section Re G - Baroness Hale says ‘In a difficult or finely balanced case it would be helpful to address each of the facts in the case and each judge must go through the entire list making reasons for their judgement clear’ (Per Curium) The court is assisted in its assessment of a child’s welfare by the checklist in section 1(3) and the guidance as to its use in section 1(4) Children Act 1989: ‘In the circumstances mentioned in subsection (4), a court shall have regard in particular to— (this means it’s an non-exhaustive list) (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. Criticisms of the checklist:  The word ‘welfare’ is not defined in the Act.  The checklist is so vague and indeterminate (Mnookin -he is an author) and flexible that you can come out with any outcome- J v B (2017) - Transgender dad was only allowed to send 4 cards to is children per year  Lacks transparency - Reece  Eekelaar- It should be changed to well-being

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Read the case of AB v BB and Children (Through Their Children’s Guardian) [2014] 1 FLR 178. How did Theis J use the welfare principle and welfare checklist to reach the decision in this case ? 

Father would apply for a child arrangement order as he wants contact

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I am acutely conscious of the importance for children, when their parents separate, of remaining in contact with the non-resident parent, but this has to be subject to the welfare needs of each child and the facts of each case. I also recognize the Draconian nature of the order being sought by the mother. The court should be very slow to make such an order, unless the welfare of each of the children demands it. The Art 8 rights of the parents and the children are clearly engaged in this case. They can only be

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interfered with if it is proportionate to do so, on the facts of the particular case.

Decision There should be no direct or indirect contact between the children and the father, save for the limited indirect contact outlined below. I have reached that conclusion for the following reasons: (1) The children are too young to express their wishes and feelings. (2) The evidence demonstrates each of the children’s physical, emotional and their mother is meeting educational needs. The relevant statutory agencies have confirmed they have no concerns about the mother’s care. Their welfare needs demand that they continue to have this stability of care. However, I am satisfied in this case that the children cannot see their father without adversely affecting their overall emotional needs by putting at risk the emotional stability they have of being cared for by their mother. (3) The children are settled and secure in their mother’s care. (4) The children are very young and, apart from C, have only known being cared for by the mother. (5) The three older children have suffered harm in that they were in the home when the incidents in 2010 occurred and are likely to have witnessed or heard some of what took place. Whilst they were very young at the time each occasion involved, at the very least, shouting and arguing between the parents as well as the assaults on the mother. They are all at risk of future harm as it was clear the father’s attitude to what had taken place had not really changed. (6) The capability of each of the parents to meet the children’s needs is, in my judgment, clear. The mother is their primary career and, despite the criticisms made by the father of her ability to undertake that, the evidence demonstrates that she is doing that to a high standard. (7) I am satisfied that direct contact between the children and their father would not be in their interests as, even if supervised, it would risk the stability and security they have living with their mother. This is due to the risk of things being said or information being given inadvertently during contact (even if supervised). Also the detrimental effect on the mother’s ability to care for the children if direct contact took place, due to her fear of the father. [14] The father seeks a risk assessment by a consultant psychiatrist in relation to any risk he may pose to the children. His attitudes are deep rooted. The Children’s Guardian observed that ‘… he [the father] has a long journey to go on’ and that crucially any assessment misses the point as it would not take account of the mother’s perception and fear, her emotional state and the impact of that on the children. GO THROUGH EACH PART OF THE CHECKLIST A-G AND USE CASE LAW TO BACK UP WHAT YOUR SAYING...