Whenever a Court has to determine the arrangements for a child, the child’s welfare is the Court’s paramount consideration. In assessing what is in the best interests of a child’s welfare, the Court must have regard to a list of factors set out in Schedule 1(3) of The Children Act 1989. These are as follows:
- The ascertainable wishes and feelings of the child concerned, considered in the light of his age and level of understanding;
- His physical, educational and emotional needs;
- The likely effect on him of any change in his circumstances;
- His age, sex, background and any characteristics of his which the Court considers significant;
- Any harm which he has suffered or is likely to suffer;
- 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; and
- The range of powers available to the Court.
In order to consider these factors, the Court needs to gather information in the form of evidence from the parties themselves and is sometimes assisted by reports from professionals such as CAFCASS Officers or Social Workers.
The Court will then decide what is in the best interests of the child’s welfare and providing it is of the opinion that it is better for an Order to be made for the child than no Order at all, will determine the application by making an Order.
The above factors are not set out in the Children Act in any order of importance; they are each as equally important as the other and it may be that even if a child’s wishes and feelings are that the application should be determined in one way, the remaining factors suggest otherwise. This was the situation in a recent case that came before the Honourable Mr Justice Peter Jackson.
In the case known as Re: A Letter to a Young Person which was determined in July 2017, the parents of a 14 year old boy were in dispute as to with which parent he should live. The child lived with the mother and step-father and spent time with the father. The father however, wanted to remove the child to live with him in Scandinavia whilst the mother and step-father wanted him to remain living with them in England. The child decided that he wanted to go and live with his father and instructed his own solicitor to make the application to Court himself.
The Judge felt it appropriate to hear from the child himself and rather than being questioned directly by his parents through their legal representatives, decided that the child should initially attend the Hearing and answer a few questions put to him by his own solicitor and then answer five previously prepared questions from each parent that were put to him by the Judge. The child was then allowed to leave Court so that he could go on a pre-arranged school trip for the rest of the week.
Having heard evidence from both parents, the step-father and the CAFCASS Officer who had prepared a report, the Judge gave his Judgment in the form of a letter to the child which was read out in Court and subsequently handed to the child by his own solicitor.
The Judge set out in the letter how he had reached his decision. Whilst the Judge accepted that the child had said that he wanted to live with his father in Scandinavia, he was of the opinion that the child’s views were borne out of loyalty to his father and doing what he thought would please his father. The Judge found that the father had manipulated the child and that he showed little regard for what was best for his son. The father had not presented the Court with any settled plan as to how he was going to support his son in Scandinavia; where they were going to live or where the child would go to school.
Having considered all the evidence and the welfare factors, the Judge dismissed the father’s application that the child travel with him to live in Scandinavia and set out in the Order the arrangements for the child to spend time with his father in the UK and as to how contact would take place if and when the father did leave for Scandinavia.
It is understood that the child accepted the Judge’s decision as set out in the letter.
This case demonstrates therefore that whilst the wishes and feelings of a child in their mid-teens will carry significant weight, the Judge must still consider all the factors as defined in the Children Act 1989 and as was the case here, may conclude that his welfare dictates a decision which is contrary to what the child says should happen.
Article written by Dawn Gore