The Children Act of 1989 governs many of the laws relating to children and states that the courts will not make any orders unless this will be better for the child than making no orders at all.
If the parents of a child are in dispute over the arrangements post-separation or divorce, they should try negotiation or mediation methods to attempt to resolve their differences before getting the courts involved. If this proves to be unsuccessful, a court application can be made to have the arguments put before a judge.
Courts do have a wide range of powers available to them when hearing cases involving children.
The four main types of orders are:
1. Residence Orders or Shared Residence Orders – these orders determine where the child shall live.
2. Contact Orders – these regulate the time the child should spend with the other parent or with some other person.
3. Specific Issue Orders – as the name implies these orders determine specific issues relating to the child, such as what name the child should use, where they will be going to school etc.
4. Prohibitive Steps Orders – these will try to prevent the other parent doing something. So if the mother wants to take the child to live in another country, the father may apply for a prohibitive steps order to try and stop them from doing so.
In deciding for or against such orders, the courts will bear in mind certain principles; the main one being that the child’s welfare is paramount. This therefore means that the welfare of the child should come before and above any other consideration in deciding whether to make an order.
In assisting the court in coming to a decision, the Children Act, though not providing a definition of welfare, does give a welfare checklist which identifies aspects of it which the court should have regard to. It says the court should bear in mind:
- The ascertainable wishes and feelings of the child concerned in light of his age and understanding.
- His physical, emotional and educational needs.
- The likely effect on him of any change in his circumstances.
- The child’s age, sex and other relevant characteristics.
- Any harm the child has suffered or is at risk of suffering.
- How capable each of his parents, or any other person the court considers to be relevant, is of meeting the child’s needs.
- The range of powers available to the court under this Act in the proceedings in question.
The aim in providing the welfare checklist is to give the courts some certainty and consistency throughout the country, which will help the parties involved as well as those advising them.