The Welfare Checklist and the Paramountcy Principle – Children Act 1989

If you to find yourself in Family Court in the United Kingdom talking about Children then you should be aware of the concept of “Best Interest of the Child” and “Child Welfare”.

[EDITOR’S NOTE: The House Commons and the House of Lords have successively refused to update a construct that was introduced in the 1989 Children Act.]

What is the Welfare Checklist?

To ensure that the courts are acting, (or seen to be acting), in the child’s best interests at all times the Court should have regard to a list of items known as the “Welfare Checklist” which can be found in Section 1 Paragraph 3 of the Children Act 1989. That Act also replaced the concept of parental rights with that of parental responsibility, reflecting Parliament’s view that parenthood was a matter of responsibility not rights

The Welfare Checklist contains the following items:

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.

 

The Paramountcy Principle

The list is not intended to convey a hierarchy but virtue of an item’s position in the list. Each should be examined separately and it is the total Welfare of the Child that takes paramountcy rather than any individual item.

There were many debates around this very issue when the checklist was being proposed by Parliament, and a number of MPs and Lords were concerned both about the paramountcy being protected and not usurped by Wishes and Feelings, but also whether we should be involving children in decisions and court action that could be distressing and emotionally damaging.

The Lord Chancellor went to some lengths to explain his viewpoint:

…in looking at this amendment we have also to note the point that the amendment mentions an “informed decision” by the child about the issue. That is something which may not be quite as deep or certain as a child’s “wishes and feelings”. It is the whole attitude of the child to the point in question which has to be taken into account. The “wishes and feelings” of the child is a phrase which encompasses that idea; that is, something certain and deep in the child’s view of the matter.

The vast majority of cases concerning children follow on the breakdown of the family, and generally the issue is about with which parent the child should live and how often, if at all, he should have contact with the other parent. As those active in this area know, the great sadness is that many or even most children, if given a real choice in the matter, would want their parents to stay together. Indeed, that is the point referred to by the noble Lord, Lord Simon of Glaisdale, in taking the paramountcy of the child forward into matrimonial law more generally.

Alas, the wishes of the children do not, and as a practical matter cannot, prevail.

I believe that the difficulty about the amendment is that if what I have just said is correct and that the child really wants the two parents to stay together, then to put a feeling child fond of both parents in the position of having to make a decision on the issue—because that is what this amendment requires is perhaps putting on the child a burden which may be greater than he needs to bear. In the ordinary case if the child wishes to be with both parents, then the answer to the question posed by Clause 1(2)(a) would be that the child would like to be with both parents, is keen on them both and wishes to stay with them both. However, assuming the child can be with only one parent, then that is a new question for the child. It may be a question with which the child should not be faced. The child may have a view on the matter, but he may not.

I should like to refer back to what I said earlier in relation to Amendment No. 1. In the possibility of that question being put to a child there is always a risk that the parent will wish to secure an answer from the child favourable to the parent concerned. He then becomes the pawn in the sad dispute which we are seeking to remove as far as possible. It is impossible to remove that altogether. However, in this Bill, as a matter of policy and in the framing of our proposals, we are trying to reduce as far as possible the temptation on parents to make their children pawns in a kind of power struggle.

Of course, I entirely accept that since the decision in Gillick, from which the noble Baroness quoted particularly the speech of my noble and learned friend Lord Scarman, there has been increased interest in and concern about the autonomy of children. That case in general terms recognises that once a child is mature and intelligent enough to take decisions for himself the parent’s authority to take those decisions ceases. Of course, the decisions in question there were rather particular decisions

Baroness Phillips interjected to add:

My Lords, perhaps the noble and learned Lord will forgive me. I do not wish to go down on the record as being a pompous and self-important creature. I merely say and reassert that we, the adults, corrupt the child

Again in 1989 The Lord Chancellor spoke at the second reading[2.  http://hansard.millbanksystems.com/lords/1988/dec/06/children-bill-hl] of the Bill to say:

In Part I we have the keynote proposition of the existing law. It is that the child’s welfare should be the paramount consideration when the courts reach decisions about his upbringing. That principle governs not only the making of orders in private cases, such as divorce, but also the court’s decision on whether to place a child in the care of a local authority or under its supervision.

Clear as the statement of paramountcy is in Clause 1, there is always a danger that such a broad principle can lead to inconsistent practice and even to courts overlooking relevant matters of detail. Accordingly, subsection (2) follows the Law Commission’s recommendation and provides a checklist of specific matters to which the court should have regard.

There is one final provision of Clause 1 that I would mention. That is the prohibition in subsection (4) against courts making any order under the Bill unless that would be better for the child than making no order. There is a danger that a child may be put in local authority care because of inadequate home circumstances but without evidence that the order would improve the situation. And in family proceedings the Law Commission noted a tendency to make orders simply as part of the divorce package. This provision aims to discourage both those practices.

 

Welfare of the Child and Cafcass

The Government has recently referred to Court’s ability to consider the children’s best interest (case in point would be the recent Petition that attracted a Government response by way of having achieved over 10,000 signatures). To provide the subjective interpretation, the Court  relies on CAFCASS to advise them on these elements.

In 1996 Lord Habgood said[3. https://publications.parliament.uk/pa/ld199596/ldhansrd/vo960222/text/60222-14.htm]:

National Family Mediation has a code of practice on this. I thought that it might be useful to your Lordships if I were to read a few paragraphs. The code states:

“Mediators must encourage the participants to consider their children’s wishes and feelings. Where appropriate, they may discuss with the participants whether and to what extent it is proper to involve the children themselves in the mediation process in order to consult them about their wishes and feelings”.

That keeps the ball firmly in the court of the parents. It continues:

“Where it appears to any mediator that a child is suffering or likely to suffer significant harm, the mediators must advise the participants to seek help from the appropriate agency.“Where it appears necessary or desirable in order to protect the child from significant harm, the mediator must in any event contact the appropriate agency”.

The code continues:

“When parents cannot agree or the situation is such that they cannot communicate with their children without the children feeling they are caught between them, or might be disloyal or are unduly influenced by one parent, then the mediator will seek to consult the children’s views directly and bring their wishes and feelings back to the parents’ session. Direct consultation by a skilled mediator gives children respect as ‘persons to whom duties are owed not objects of welfare’… and ensures that their views are fully considered and become an important influence on parents’ final decisions”.

It seems to me that to incorporate that part of the code of practice into mediation services is probably the right way for the points made in the amendments to be met. I should be fearful of anything that allowed the court direct access to the children.

Lord Coleraine responded to make what was considered to be a helpful suggestion:

My Lords, the point made by the noble Lord, Lord Habgood, was the subject of an amendment at an earlier stage. Might it be possible for the court welfare officer to collect the information from the children? I think that could be done without unduly bringing the children into the divorce.

The Court Welfare Officers were eventually replaced by Cafcass.

 

Wishes and Feelings

The Welfare Checklist includes the following item:

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

As we saw earlier, Parliament has been very clear that although the wishes and feelings of a child should be taken into account, if they can be ascertained to be the real views of the child, 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.

Lord Simon of Glaisdale perhaps sums it up with the following comments[1. http://hansard.millbanksystems.com/lords/1988/dec/19/children-bill-hl-1]:

A child is easily influenced and it is not only in this branch of the law that the law takes cognizance of that fact. When a child complains of a sexual assault, a judge will always warn the jury that it is unsafe to act purely on the say-so of the child because children are so easily influenced.

Time and again adjudicating bodies in this field have come across cases where one has felt that the wishes of the child as expressed—however expressed—reflect deeply the feelings of the person who has had the custody of the child. Time and again one is told that the child has an invincible repugnance to the other parent.

That will always put an experienced judge on warning because it is not really natural for a child to have an invincible repugnance to a parent. Indeed, the whole social background that has been fostered encourages children to love and respect both parents. As I say, time and again one finds a plea of invincible repugnance to the parent who is non-custodian.

There was concern about whether the Court Welfare Officers, and later Cafcass, would be able to understand this, identify it, and reflect it correctly in their reports.

We know from our own investigations that Cafcass have no training specifically on the Welfare of the Child, and certainly not on the paramountcy principle. Indeed everything we have seen points directly at an overwhelming willingness on Cafcass’ part to promote the wishes and feelings of the child above every other item on the checklist.

 

Coached Children

Cafcass say that they have training on the ability of a parent to coach or influence the wishes and feelings of a child. We looked into this and found that they refer to having a specific elearning module called “Coached Children” – but our research discovered that this was simply a PDF document and not, as they have sometimes claimed, an elearning module.

We also unearthed the completion rates and found that out of 1,400 FCAs working for Cafcass only 28 FCAs had accessed this PDF.  (this PDF of their training is available here: Coached Children Knowledge Bite)

We’ve also found that Cafcass encourage children to “write a letter to the Judge” and that most (if not all) of these letters are written in the home of the Resident Parent. We have an article due to be published shortly on what else goes on in the home of the resident parent but we also know that many MPs are becoming concerned about Cafcass’ approach to interviewing. Only recently the Shadow Secretary for Education and Children asked the following question of the Secretary of State for Justice:

“what guidance his Department has issued to the Children and Family Court Advisory and Support Service on interviewing children in family court cases?”

The gist of this question is to understand why, in Family Law, are Cafcass interviewing potential-victims, in the homes and presence of parents who we know can wield undue influence over the children in their care. We wouldn’t allow this in criminal cases and yet in family law this is common practice.

The Secretary of State for Justice replied to say

“The Ministry of Justice has not provided any such guidance to the Children and Family Court Advisory and Support Service (Cafcass).”

Which is strange, as not only they responsible for Cafcass, but they’re responsible for the criminal courts and processes so they should be aware of the concerns.

He did go on to add:

Cafcass has produced guidance to its social work practitioners on this as part of its Operating Framework on which it is currently consulting.

You can read a copy of the new Cafcass Operating Framework 2017 and particularly:

• section 2.19 which deals with children being interviewed or cross-examined in court, and advises the FCA on how they should advise the advocates on behaviour

We cannot find any other references to interviewing children in that document and certainly none that caution the FCA on interviewing a child in a Parent’s home or presence.

Updating the Welfare Checklist

In 2005 the Constitutional Affairs Committee recommended an amendment to the “welfare checklist” in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and a non-resident parent.

The Select Committee on Draft Children (Contact) and Adoption Bill argued:

“Such an amendment would send a clear message to the courts, to parents and to their professional advisers about the importance of maintaining links between both parents and their children”.

They went on to say:

The reference to parents in the welfare checklist is in section 1(3)(f), which provides that a court shall have regard to “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”…

…On balance, we conclude that it would be useful to have in statute what is already considered sound practice by the courts.

and concluded with the following recommendation:

We endorse the recommendation of the Constitutional Affairs Committee that an amendment should be made to the ‘welfare checklist’ in the Children Act 1989 to ensure that the courts have regard to the importance of sustaining a relationship between the children and the non-resident parent. 

In the end the amendment didn’t proceed, partly because it was felt that it could undermine the paramountcy principle but also because there was a huge amount of lobbying by gender-biased organisations arguing for or against shared parenting. That argument about whether shared meant 50/50 spilled over and derailed good progress in seeking to enshrine the presence of both parents in a child’s life as part of the Welfare Checklist.

Children deserve better.