When a court
considers any question relating to the upbringing of a
child under the Children Act 1989 it must have regard to
the welfare checklist set out in Section 1 of that Act.
This requires the consideration of:
- the ascertainable wishes and
feelings of the child concerned (considered in
light of their age and understanding);
- their physical, emotional and/or
educational needs;
- the likely effect on them of any
change in their circumstances;
- their age, sex, background and any
characteristics of theirs which the court
considers relevant;
- any harm which they have suffered
or are at risk of suffering;
- how capable each of their parents
(and any other person the court considers the
question to be relevant) is of meeting their
needs; and
- the range of powers available to
the court in the proceedings.
The child’s welfare is the
court’s paramount consideration for all proceedings
under the Children Act 1989 when it considers a question
of the child’s upbringing.
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| Where the child has
maturity and understanding, this is likely to be a
significant factor for a court to consider. It is not
unusual for a court to attach significant weighting to
the wishes and feeling of a child as young as 10 years of
age. This is demonstrated in the case of Re R (a child)
(residence order: treatment of child’s wishes);
[2009] 2 FCR 572 The Judge stated 'Full and generous
weight should be given to a mature child's wishes.'
In L vs L (Anticipatory Child Arrangements
Order) this appeared to be balanced by the Judge
explaining ' The wishes and feelings of a mature child
do not carry any presumption of precedence over any other
factors in the welfare checklist -----. The child's
preference is only one factor in the case and the court
is not bound to follow it.'
Lady Hale in R
e D (A Child), sub
nom Re D (Abduction: Rights of Custody)
[2006]
UKHL 5, [2007] 1 FLR 961
at
paras [57] to [62], in particular:
'[57] But there is now a
growing understanding of the importance of listening
to the children involved in children's cases. It is
the child, more than anyone else, who will have to
live with what the court decides. Those who do listen
to children understand that they often have a point
of view which is quite distinct from that of the
person looking after them. They are quite capable of
being moral actors in their own right. Just as the
adults may have to do what the court decides whether
they like it or not, so may the child. But that is no
more a reason for failing to hear what the child has
to say than it is for refusing to hear the parents'
views.'
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| Comment by
Philip
Kedge
: In
reality and from experiences,
it appears that
significant weighting can be attributed to children of
much younger age, even between the ages of 6-8 years of
age, or at least be the tipping point in favour of a
judgement under the threshold of balance of balance of
probability, which many may express as a concern.
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| Resources:
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| Watch
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