What is the Welfare Checklist?
Section 1 of the Children Act 1989 needs to be kept in mind by anyone involved in a case involving a child at all times.
Section 1(1) sets out that where the Court has to make any decision with regards 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 welfare of the child is the Court’s paramount consideration.
Under Section 1(2), where the Court is dealing with a question regarding a child’s upbringing the Court shall have regard to the general principle that any delay in making a decision is likely to prejudice the welfare of the child.
Section 1(2A) which was introduced by the Children and Families Act 2014 states that there is a presumption that the involvement of a parent in a child’s life will add to the child’s welfare. Section 1(2B) goes on to say that ‘involvement’ means involvement of some kind, whether this is direct or indirect, and is not any specific division of a child’s time.
However Section 1(6), which again was introduced by the Children and Families Act 2014, goes on to clarify that the involvement of the parent in whatever way must not put the child at risk of suffering harm, and it is presumed that the child will not be put at risk unless there is some evidence before the Court to suggest that the involvement of that parent in the child’s life will put the child at risk of suffering harm.
In a nutshell it is in the best interests of the child’s welfare for both parents to be involved in the child’s life provided it is safe for this to happen.
When the Court is making a decision in respect of an application for a Child Arrangements Order, Specific Issue Order or Prohibited Steps Order, or in respect of an application to vary or discharge an order which has already been made and the application is opposed by the other party or parties to the proceedings, or the Court is asked to make, vary or discharge a Special Guardianship Order, or other order dealing with the care and supervision of children, the Court shall under Section 1(3) of the Children Act have particular regard to various factors.
These factors are known as the ‘Welfare Checklist’ and any author of a Section 7 Report (see separate Q&A) should refer to them within the report and apply the facts of that particular case to each item on the checklist.
The Welfare Checklist is as follows :-
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);
Despite popular belief, there is no set age from which a child’s wishes and feelings will be taken into account. One child may be fairly young but be very clear in what they want to see happen and be able to justify why they feel the way they do, whilst another may be older but may not feel able to express themselves, say, for fear of hurting one of the parents; because they are scared; or because they feel responsible for the parent with whom they currently live. Each child is an individual and must be treated as such.
(b) the child’s physical, emotional and educational needs;
Some children will have special needs as far as their physical, mental, emotional or learning capabilities are concerned, and these will have to be taken into account when the Court makes its decision.
(c) the likely effect on the child of any change in the child’s circumstances;
All children will be affected by any change, whether this is living elsewhere, spending more time or less time with the other parent or commencing contact with the other parent etc, but some children will be affected more than others. Consideration will need to be given as to whether any proposed change will not be in the child’s best interests and whether the child may suffer if that change is brought about.
(d) the age, sex, background and any characteristics of the child which the Court considers relevant
(e) any harm which the child has suffered or is at risk of suffering
(f) how capable each of the child’s parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child’s needs
In addition to the practical day-to-day needs of a child, each child will have his/her own individual needs and some parents will be better than others of dealing with them. For example a sensitive child is unlikely to flourish if a parent does not recognise this, sees it as a weakness or dismisses it as unimportant, or constantly tells the child not to ‘be soft’. There are other cases where there is no question that the parent loves the child but unfortunately it is the parent’s own issues which means they are not capable of meeting their child’s needs, or they are prioritising their own needs or lifestyle above the child’s needs.
(g) the range of powers available to the Court in the proceedings in question
If the Court feels that it needs to make any other order then it can do so. For example if the application is for a Child Arrangements Order, it is not unusual for the Court to make a Prohibited Steps Order within those proceedings, preventing a party to the case from removing a child from the parent with care, or from their place of education or from the jurisdiction of the Court (ie being taken out of England and Wales).
The Court will also consider the ‘no order principle’ which is set down in Section 1(5) of the Children Act and which states that when deciding whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.