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Posted by familylaw on 19th December 2011

The court’s paramount consideration is the welfare of your children.

The court’s consider your child’s upbringing, the welfare of your children, and the administration of a child’s property or income arising from it.

When doing so they have to take into account the following:

The wishes and feelings of the children

Whether or not the children’s views will be taken into account will depend upon their age, understanding and maturity.

The children’s physical, emotional and educational needs

This may include looking at the children’s accommodation, medical conditions, religion or education; as well as how close the child is to siblings. The court will consider the short and long term needs of a child.

Likely effect of any change in circumstance upon the children

The courts are keen to preserve the current situation (‘Status Quo’) as they recognise that a change in the children’s circumstances usually has an adverse effect upon them. This generally means that the child’s mother is at an advantage, and this is one of the problems fathers have to overcome. A lot will depend upon individual circumstances, but staying in the family home, and having as much contact and involvement in the lives of your children is essential during the divorce process.

The child’s age, sex, background and any other characteristics that the court considers relevant

Age has a decisive influence on the importance a court will attach to a child’s wishes as older children can choose to live with both parents. The courts tend to order that very young babies live with their mothers.

Any harm which the children have suffered or at risk of suffering

Under this comes the issue of domestic violence, sexual abuse, physical and emotional abuse. If domestic violence is an issue your solicitor will need to notify the court at the earliest opportunity. It is very important as it is potentially damaging to a child.

If there has been domestic violence or sexual abuse or an allegation of domestic violence, sexual abuse, physical or emotional abuse has been made, the court may well order a separate (Finding of Fact) hearing so that the Judge can make findings as to whether or not violence/abuse has occurred. The case will then proceed as usual with those findings being taken into account. Domestic violence is not an absolute bar to contact but may affect the way in which the court deals with contact and the frequency of the same.

How capable each parent is and any other relevant person who will be meeting the children

The courts will assess each individual’s ability to care for the child, including the parents lifestyle, health-care and the conduct (criminal record).

The Range of Powers Available to the Court

The No Order Principle

The court will also have to be satisfied that in making an order it would be better for your child than making no order at all. The court may decide that it should make no order because it will only cause further conflict or alternatively because yourself and your former partner may be able to reach your own agreement.

The Welfare Principle

The Welfare Principle is the general principles that the courts apply where there is a dispute over a child’s upbringing. It includes the overall welfare of the child as well as the administration of a child’s property or income arising from it.

Wishes and feelings of children

Whether or not the children’s views will be taken into account will depend upon their age, understanding and maturity. The older a child is, the more weight will be given to their wishes.

In order to ascertain the children’s wishes and feelings a CAFCASS Officer may be appointed to speak with the children. Where a child expresses a wish to live with a particular parent, the court will consider the age and maturity of the child as well as any influencing factors. A child may also be scared to voice his opinion, in case it is not what his parents want to hear, a CAFCASS officer will have the experience to recognise if this is the case and will factor this in to his/her recommendation.

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