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General Disclaimer: Nothing presented constitutes legal advice and the McKenzie Friend UK Network is not a legal entity or in anyway claims to be a 'legal resource'. The resource guide is supported by McKenzie Friends and Litigants in person for Litigants in Person in Family Court. McKenzie Friends provide layperson support as an informed friend under the Family Court Practrice Guidance of 2010. All information is published under the spirit of that guidance. For any corrections of the information, please contact the McKenzie Friend UK Network
 
Child Welfare Checklist
 
 
When a court considers any question relating to the upbringing of a child under the Children Act 1989 it must have regard to the welfare checklist set out in Section 1 of that Act. This requires the consideration of:
  • the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
  • their physical, emotional and/or educational needs;
  • the likely effect on them of any change in their circumstances;
  • their age, sex, background and any characteristics of theirs which the court considers relevant;
  • any harm which they have suffered or are at risk of suffering;
  • how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and
  • the range of powers available to the court in the proceedings.

The child’s welfare is the court’s paramount consideration for all proceedings under the Children Act 1989 when it considers a question of the child’s upbringing.

 
 
Where the child has maturity and understanding, this is likely to be a significant factor for a court to consider. It is not unusual for a court to attach significant weighting to the wishes and feeling of a child as young as 10 years of age. This is demonstrated in the case of Re R (a child) (residence order: treatment of child’s wishes); [2009] 2 FCR 572 The Judge stated 'Full and generous weight should be given to a mature child's wishes.'

In L vs L (Anticipatory Child Arrangements Order) this appeared to be balanced by the Judge explaining ' The wishes and feelings of a mature child do not carry any presumption of precedence over any other factors in the welfare checklist -----. The child's preference is only one factor in the case and the court is not bound to follow it.'

Lady Hale in R e D (A Child), sub nom Re D (Abduction: Rights of Custody)  [2006] UKHL 5, [2007] 1 FLR 961 at paras [57] to [62], in particular:

'[57] But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.'

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Comment by Philip Kedge : In reality and from experiences, it appears that significant weighting can be attributed to children of much younger age, even between the ages of 6-8 years of age, or at least be the tipping point in favour of a judgement under the threshold of balance of balance of probability, which many may express as a concern.
 
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