Child arrangements in the UK: understanding the “Best Interests of the Child” standard
Anyone who has ever been involved in a legal or administrative process that involves a child or children is likely to have heard the phrase “best interests of the child” crop up. Probably more than once.
This rather blunt statement amounts to a principle which must be invoked by every court of law, local authority, public body or other administrative body in any process or dealings that involve children or which may impact upon children. It is the standard which must be applied throughout their decision-making processes.
The origins of the principle
The “best interests of the child” principle made its first public appearance during the UN Convention on the Rights of the Child in 1989. According to Article 3.1 of the Convention:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
This injunction was then enshrined into UK law by virtue of the Children Act 1989 (“the Act”), S1.1 of which says:
When a court determines any question with respect to—
(a)the upbringing of a child; or
(b)the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.
The aim of the legislation was to balance the protection of children against any unwarranted interference in family life.
What does it actually mean?
When it comes to the best interests of the child in child arrangement cases, there is no standard or prescribed one-size-fits-all definition. This is hardly surprising since every matter will have widely differing circumstances and so each is dealt with on a case-by-case basis. However, S1 of the Children Act sets out a very useful 7-point checklist of factors that need to be taken into account when reaching decisions. These are:
The wishes and feelings of the child, where these can be ascertained. These must be considered in light of the child’s age and level of understanding. Clearly, a 14 year-old will be able to express their preferences in the way that, say, a toddler cannot
The physical, educational and emotional needs of the child
The likely or anticipated effect upon the child of any change of circumstances. It is widely recognised and understood that frequent changes of homes or care regimes can be very unsettling for any child. Stability, wherever possible, is best.
The age, sex, background or any other characteristic of the child that may be considered relevant
Any harm the child has suffered or is at risk of suffering in the future or any abuse that may have happened in the past and may recur.
The capability of each parent or guardian in meeting the needs of the child. This may include any person in relation to whom this question is deemed relevant, e.g., relatives
The range of power available to the court under the Act in relation to the proceedings in question.
This checklist should be consulted and judged against the evidence provided to the court in helping it to decide upon what measures would prove to be in the child's best interests.
What factors are likely to be considered?
There is no unitary ‘best interests of the child test’. The child’s age is going to be highly relevant. A very young child - an infant or a toddler - is likely to be deemed to be better off with their mother. With older children, the court will listen to their views and decide if they are mature enough to make their own decisions and how much weight to give to those views.
The consistency of care will also be of great importance. The court will be reluctant to cause undue disruption to the child’s life, although the desire for consistency will always be balanced against other factors.
In addition, the court will want evidence of any parent or carer’s ability to meet the child’s needs, both physical and emotional. This means evidence of the ability to meet basic needs such as shelter, food, education and medical care and also the ability and willingness to provide the child with suitable guidance and emotional support. For example, a parent seeking access will have to satisfy the court that they have been actively engaged in the child’s rearing.
Above all, and at all times, the court will put the child’s safety and well-being ahead of any other considerations, ensuring that the child’s interests are paramount.
If you are involved, or likely to be involved, in a case involving children, then it is absolutely vital that you seek professional legal advice from a solicitor who is not just suitably experienced but is also acutely aware of the sensitive nature of such cases and the care required when dealing with them.
For further information and trusted legal advice regarding matters of children law or divorce, get in touch with our Resolution-accredited divorce lawyers in London at Carlsons Solicitors.