In family proceedings involving children and where the family court is making a decision on matters that will affect a child, the courts are required to look at the welfare of the child as the paramount consideration. The welfare checklist consists of seven statutory criteria that the courts must consider under the Children Act 1989 when reaching its decision in cases involving children. The “Welfare Checklist” which can be found in Section 1 Paragraph 3 of the Children Act 1989.
a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
So how much emphasis is placed on Wishes and Feelings?
The first item on the welfare checklist pertains to “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding.)
How do the courts determine the ascertainable wishes and feelings of the child and how much are they taken into account? Parliament has been very clear that these wishes and feelings do not take any more paramountcy over any other item in the Welfare Checklist. Indeed it remains the case that the Welfare of the Child is the paramount principle and over-rides all items within the checklist.
It is important to remember that not every child will necessarily be spoken to. There are many young children who are too young to be involved in the wishes and feelings process.
Although the court outlines that it considers the welfare checklist at all stages, children’s wishes and feelings are not considered or sought by Cafcass initially and children will not be contacted prior to the First Hearing – FHDRA.
It is therefore crucial that parents understand how the court process works and the importance of the first telephone interview with a CAFCASS officer once a child arrangements application has been made.
CAFCASS’s primary role in court proceedings between parents is safeguarding (assessing risk). Every court application between parents is sent to CAFCASS in order for CAFCASS to do initial safeguarding enquiries.
It is during this first phone call that a parent can highlight a number of issues concerning a child or children, including concerns about safety or wellbeing. You are in many ways then a voice for your child. It is important to plan in advance for the phone interview. You will be told in advance by Cafcass so that you are ready for the call and can respond in a calm and concise manner, focusing on your child’s needs, welfare and safety and those of any vulnerable adults who care for them. (Vulnerability includes survivors of domestic abuse).
Here at Women’s McKenzie Friend we can offer you support and guidance in planning for Cafcass phone interviews and assisting you with outcomes from the section 2 Safeguarding letter and during the process of Section 7 assessment. We understand that this can be a stressful time for women and are here to help you. Please email us for a free half hour consultation to see how we can assist you.