Considerations

When determining any question relating to the upbringing of a child Courts give paramount consideration to the child's welfare. It follows that the central question posed by Courts is "What is in the best interests of the child?"

The Children Act 1989 sets out a number of factors that Courts should have regard to in trying to determine what is in the child's interests:-

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

(b) The child’s physical, emotional and educational needs.

(c) The likely effect on the child of any change in circumstances.

(d) The child’s age, sex, background and any characteristics which the court considers relevant.

(e) Any harm which the child has suffered or is at risk of suffering.

(f) 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.

(g) The range of powers available to the court under this Act in the proceedings in question.

The Court is under a duty to presume with respect to each parent, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. This presumption however only applies if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.

The Court will also have regard to the general principle that any delay in determining issues relating to the upbringing of a child is likely to prejudice the welfare of that child.

There is a presumption that the Court should not intervene unless it is in the best interests of the child. Therefore the court will only make a formal residence order, or any other order, if there is a dispute, or if it is in the particular interests of the child to make an order.