In family law proceedings involving children, the importance of children’s wishes and feelings including their welfare is the courts paramount consideration.
When considering what approach to take, the judge will turn to the welfare checklist set out in the Children Act 1989, section 1 (3).
What criteria must the court consider?
Key areas of consideration include:
- The ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
- Physical, emotional and educational needs;
- The likely effect on them if any change in circumstances;
- Age, sex, background and any characteristics of which the court considers relevant;
- Any harm which they have suffered or are at risk of suffering;
- How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
- The range of powers available to the court under this Act in the proceedings in question.
To assist the judge in addressing these issues, the court will usually consider commissioning a Cafcass (Children and Family Court Advisory and Support Service) report.
How can Cafcass help address children’s wishes and feelings?
Cafcass are an independent organisation and are the largest employer of social workers in England.
A Cafcass officer, if appointed by the judge, will speak with both parents. They will decide whether it is appropriate to speak with the child taking into account their age, their understanding and any other relevant factors. Whilst parents can be concerned that children have been primed to give a response, Cafcass officers are trained to look at context when reporting a child`s position. If possible, the Cafcass officer will make a recommendation to the court. The judge is not required to follow that recommendation, but the independent Cafcass officers view is likely to be influential.
Ultimately the judge will make a decision in the child’s best interests but this will not always follow what the child wants.
For more information on family law matters involving children, please contact Anita Scorah in our Family Law team, on 01625 442123.