Fundamental principles - overview

Private law applications in relation to children are predominantly governed by the Children Act 1989 (ChA 1989), though they also overlap with the Human Rights Act 1998. They generally relate to applications made under ChA 1989, s 8 for orders for residence, contact, specific issue and prohibited steps, and applications made for parental responsibility.

Paramountcy of the child's welfare

ChA 1989 provides that when determining any question with respect to:

the child's welfare shall be the court's paramount consideration.

Upbringing includes the care of the child but not their maintenance.

Conflicting interests and human rights

Conflicts may arise in applying this principle where two or more of the parties are children, eg where a child is the applicant. It has been held that neither child's welfare should be given priority over the other and it is the welfare of the child who is the subject of the application that will be paramount.

In cases of siblings who are all the subject of the same proceedings, their welfare will be equally weighted and each child's welfare should be the court's paramount consideration. In some cases their interests may conflict. In such a situation it has been held that the court should undertake a balancing exercise to reach the situation of least detriment to all.

Whilst Art 8 of the European Convention on Human Rights does not expressly state that the child's interest is to be paramount, this has been considered in cases where the child's interest may conflict with that of a parent. It has been held that where interests have to be balanced, the interests of the child must prevail.

The statutory checklist

Although welfare is not defined in ChA 1989, there is a checklist of seven relevant factors to which the court must have regard when applying the paramountcy principle in relation to contested applications under s 8. These include:

Other matters may also be taken into account by the court. Although it is not mandatory to apply the checklist in other cases, there is nothing to stop the court from doing so.

The no order principle

When considering whether to make an order under ChA 1989, the court shall not make the order unless it considers that doing so would be better for the child than making no order at all

Where an agreement has been reached on matters concerning a child, the court will have to be persuaded that it is in the child's interests for an order to be made, ie that it will make a positive improvement to their welfare. This may be of relevance after a bitterly contested dispute between parents where an agreement has been reached but one parent feels they need the security of an order for the smooth running of future contact. This provision does not apply to applications for financial provision under ChA 1989, Sch I.

The voice of the child

ChA 1989 introduced in the statutory checklist the requirement for the court to have regard to the child's own wishes and feelings, to allow the child to be heard more effectively and to be consulted in decisions made about them. The Child and Family Court Advisory and Support Service (CAFCASS) officer will, where appropriate, be directed to ascertain this in light of the child's age and understanding. With leave of the court the child can apply for a s 8 order. In exceptional cases the court can join the child as a party, in which case they may be represented by a guardian ad litem appointed by the court or, in certain circumstances with leave, by a solicitor instructed by the child.

Avoidance of delay

ChA 1989 provides that in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that delay in determining the question is likely to prejudice their welfare. The court is required to draw up timetables and control the progress of proceedings.