Parental disputes over arrangements for their children can take many forms, from how much time the child should spend with each parent, to whether one parent should be allowed to take the child abroad, to a dispute over which school the child should attend or what name they should use.

Whatever the dispute, if the parents are unable to resolve it themselves, the Family Court may be asked to decide it for them.

But how does the court decide such a dispute? What are the principles that it uses to come to a decision?

The overriding principle is that the child’s welfare is the court’s paramount consideration. In other words, the court will reach its decision based upon what it considers best for the welfare of the child.

And in deciding how the child’s welfare is best served the court will have regard in particular to a list of factors set out in the Children Act, known as the ‘welfare checklist’. The welfare checklist is therefore central to any decision regarding arrangements for children.

The welfare checklist

The checklist comprises the following seven factors:

  1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding – The court will always seek to ascertain the wishes of the child, normally through discussions between the child and a court welfare officer. Obviously, the older the child, the more likely that the court will follow the child’s wishes. The law does not specify a particular age at which the court will follow their wishes, but back in 1995 Mr Justice Wilson, as he then was, stated that court orders “which run flatly counter to the wishes of normal children aged 16, 14 and 12 are virtually unknown to family law.”
  2. The child’s physical, emotional and educational needs – Fairly self-explanatory, this refers to basic needs such as for suitable accommodation, and such things as special health or educational needs.
  3. The likely effect on the child of any change in circumstances – The chances are that the court will be considering an issue that could involve a significant change in the child’s circumstances, and obviously it will want to consider the likely effect of that change upon the child.
  4. The child’s age, sex, background and any characteristics which the court considers relevant – this could include such matters as a child’s interests and religious beliefs.
  5. Any harm which the child has suffered or is at risk of suffering – Obviously, if the child has suffered, or is considered to be at risk of suffering, physical or emotional harm then that will have a major bearing upon the decision of the court.
  6. 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 the child’s needs – Clearly, the court will want to ensure that any such person is fully capable of meeting the child’s physical, emotional and educational needs.
  7. Lastly, the range of powers available to the court – This is essentially a reminder that the court can make any order it considers appropriate for the welfare of the child, not just the order or orders that the parents are asking the court to make.

The welfare checklist in action

So how does the checklist operate in practice? Obviously, no two cases are the same, and not all of the factors will necessarily be relevant in all cases, but the 2021 judgment of Her Honour Judge Vincent, sitting in the Family Court at Oxford in the case M and J (private law final hearing), is an instructive example.

The case concerned two sisters, then aged 13 and 11. Their parents separated in around 2015, and the girls had been sharing their time equally between both parents.

However, following concerns over the mother’s alcohol abuse and mental health, this arrangement was suspended and the father applied to the court for an order that the children live solely with him, and have only supervised direct contact with their mother.

In her judgment HHJ Vincent went through the welfare checklist, and made the following findings:

  1. That the girls genuinely felt unsafe in their mother’s presence.
  2. That the girls needed to be supported in their education, in developing their own interests, friendships, and, as they headed towards adolescence, to become more independent, make more decisions for themselves, and start to experience more of life away from their family unit.
  3. That any change back to the previous shared-care arrangement was likely to have a destabilising effect on the girls.
  4. That as to their age, sex and background, etc., there were no additional factors to consider.
  5. That the girls had suffered emotional harm in their mother’s care, and that there were times when they were at risk of physical harm.
  6. That the girls’ father was able to meet all of their physical, educational and emotional needs, but that the mother was not in a position to provide them with the emotional stability and security they needed.

Lastly, HHJ Vincent reminded herself that whatever orders were being sought the court could make a whole range orders, or indeed no order at all if it considered that to be appropriate.

In the circumstances Judge Vincent concluded that the children’s welfare interests would be best served by them remaining with their father. She therefore ordered that they should live with him, and that any direct contact with their mother should be supervised by a third party.