The ‘welfare check list’ introduced into statute law in 1989 has proved to be invaluable to judges, courts and other professionals as a way of deciding what is best for a child. It lists, as follows the factors to be taken into account:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- his physical, emotional and educational needs
- the likely effect of any change in his circumstances
- his age, sex, background and any characteristics of his which the court considers relevant
- any harm which he has suffered or is at risk of suffering
- 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
- the range of powers available to the court under this Act in the proceedings in question.
The Children and Families Act 2014 has introduced into the Children Act a new section: ‘Welfare of the child: parental involvement’ which requires the court to presume that the involvement of a parent in the life of the child will further the child’s welfare, unless there is evidence to the contrary. Involvement means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
Will this make any difference, in practice?
Well we would say that, obviously, the needs of the child would include, normally speaking, the need of a child to maintain a relationship with both parents; the presumption that the involvement of both parents in the life of the child will further the child’s welfare. That is the principle we follow in mediation, and we believe it is the principle applied by the courts.
So whereas we can see some merit to the ‘parental involvement principle’ being made explicit, we are not sure whether it should make any real difference to the proper application of the welfare check list in practice.
As mediators we shall always draw parents’ attention to the welfare check list and the legal provisions of the Children’s Act. But, actually, these general principles are little more than common sense. We believe most parents are able to apply these kinds of general principles to their situation in a way that enables their children to enjoy the best possible relationship with both parents. The quality of that relationship is determined, we know from much international research, not by the number of nights the child spends with either parent, but by the extent to which children feel that their parents co-operate in respect of their living arrangements. That is what matters. That co-operation is what we aim to achieve in mediation. It is not something that can be imposed by statute law or the courts.