What will the court consider when determining the arrangements for the child in care proceedings?
The Welfare Checklist under Section 1(3) of the Children Act 1989 is a list of considerations which is used by the court when determining the arrangements for the child in care proceedings.
The court will consider:
a. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
In care proceedings, a Children’s Guardian will be appointed by the Children and Family Court Advisory and Support Service (CAFCASS). The Children’s Guardian will speak to the child to ascertain their wishes and feelings and will also ensure that the Local Authority’s arrangements and decisions promote the child’s best interests.
The age at which the court will begin to listen to a child is not defined in law, however, generally, the older the child, the more weight that is placed on their wishes and feelings.
For example, it is assumed that children aged 12+ are of a mature age where they can understand and form their own opinions without the influence of others.
Within care proceedings, the concerns may however be so significant that the court may have to make decisions which are not in line with the child’s wishes and feelings, because their safety or welfare demands this.
However, every case is different, and the court must consider the particular child and circumstances of the case when assessing the weight to be placed on their wishes and feelings.
b. his physical, emotional, and educational needs;
The court must consider both short term and long term physical, emotional and educational needs.
This relates to the parents ability to meet the child’s physical needs. A child’s physical needs are dependent on that particular child as no two children are the same.
For example, a new born baby’s physical needs would include changing their nappy, feeding them, ensuring they are clothed and ensuring that medical advice is sought if they are unwell. In comparison to this, a 12 year old child may be able to take care of some of their physical needs themselves such as getting dressed and brushing their teeth. However, this is not always the case as some children have disabilities or characteristics that prevent them from being able to do so. Nevertheless, it is the parents who are overall responsible for meeting the child’s physical needs.
This relates to the parents ability to meet the child’s emotional needs. This is not always straight forward and may require further investigation.
The view is that a child should feel loved by their parents and wider family members. The child should feel secure in their family home and be confident enough to open up to their family about any problems they are experiencing. Nowadays, more and more children are being diagnosed with mental health illnesses such as anxiety and depression and it is important that if parents notice symptoms, they seek support from trained professionals.
This relates to the parents ability to meet the child’s educational needs. The parents are responsible for ensuring the child attends school and is receiving an adequate education to support their development. If there are concerns around a child’s development, it is important that they receive the right support by trained professionals.
Every child is different and so it is important that the court consider each case individually.
c. the likely effect on him of any change in his circumstances;
In care proceedings, it is generally the view of the court that families should remain together. The court must consider the effect on the child of removing them from the parents or for example, changing their school or social environment. The court should consider what would cause the least disruption.
d. his age, sex, background, and any characteristics of his which the court consider relevant;
This includes cultural and religious backgrounds and also extends to characteristics which are specific to the child and the wider family. For example, children who are brought up surrounded by religion and cultural behaviours may behave differently to children who are not. The view is that something that may be seen as inappropriate in one religion/culture, could be seen as appropriate in another and so it is important to consider these carefully.
At the Grandparents Legal Centre, we have dealt with many cases involving physical chastisement of children. In the UK, physical chastisement is illegal, however in other countries it is not. A recent case that we were instructed on involved parents who had lived in another continent for the majority of their life. The parents had always physically chastised their child which was completely legal where they were residing, however, when they moved to the UK, the Local Authority issued care proceedings stating that the child should be placed under a Care Order, thus residing in a foster placement. The Judge in this case considered the child’s background, including the culture of the family’s country of origin and decided that this was considered normal in their former lifestyle. The Judge decided that the parents require support and training on the laws in the UK and ruled that the child should not be placed in foster care but should remain with the parents.
e. any harm which he has suffered or is at risk of suffering;
The threshold for care proceedings is that the Local Authority must believe that the child has or is at risk of suffering significant harm. This could be physically, emotionally, or sexually. If the Local Authority issue care proceedings, they must prove that the threshold is met by providing evidence to the court. The court will then weigh up the evidence and consider the risk to the child.
If the court believes that the child has suffered or is at risk of suffering harm, they will take steps to ensure that the child’s best interests are met. The court may consider the following orders:
- Interim Care Order – this order may be granted during care proceedings. This means that whilst the proceedings are ongoing, the child will remain under the care of the Local Authority until the final decision is made. The Local Authority will share parental responsibility with the birth parents.
- Care Order – this order may be granted at the end of proceedings. This means that the child will be placed in the Local Authority’s care until the age of 18 (unless it is discharged before the child reaches the age of 18). The Local Authority will share parental responsibility with the birth parents; however, they will have the overriding say.
- Interim Supervision Order – this order may be granted during care proceedings. This means that whilst the proceedings are ongoing, the Local Authority will have a duty to supervise the care of the child until the final decision is made. The Local Authority will not be granted any parental responsibility.
- Supervision Order – this order may be granted at the end of proceedings. The Local Authority will not be granted any parental responsibility; however, they will supervise the care of the child. This order usually lasts for 6 or 12 months, however, can be extended further.
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;
The court will consider whether the parents are able to meet the child’s needs. This is dependent upon the child’s specific needs and the parent’s ability to care as a parent.
The court are generally satisfied if the child’s basic needs are met and will look as to whether the parents are “good enough”. This concept was first introduced by Donald Winnicott in 1960. Donald was an English paediatrician and psychoanalyst who recognised that no parent is perfect and was interested in finding out what made them “good enough”.
So, what is “good enough”? Good enough parenting is parenting which meets the child’s needs. All children need physical care, nutrition, and protection in addition to meeting their emotional needs such as the feeling of being loved. In previous case law, it was highlighted that it does not matter whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health needs are not in danger.
In care proceedings, the Local Authority will undertake parenting assessments to determine whether the parents are able to meet the child’s needs. The outcome of this assessment will either be positive, negative, or finely balanced. If the assessment is positive, the Local Authority do not have any concerns regarding the parents ability to meet the child’s needs. If the assessment is negative, the Local Authority are concerned that the parents are not able to meet the child’s needs and so may propose that the child be placed in the care of a friend, family member, foster carer or as a last resort, prospective adopter. If the assessment is finely balanced, the Local Authority have some concerns but also note positives and so it may be that the parents require support to enable them to care for the child. It may be that the Local Authority propose supervision or placing the child with a friend or family member.
The Local Authority will also assess any friend or family member who has put themselves forward to care for the child. The Local Authority’s proposals will be dependent upon the outcome of the assessment.
g. the range of powers available to the court under the Children Act 1989 in the proceedings in question
The court will consider every option in care proceedings. If the court are not satisfied that the child should remain in the care of their parents, they may look at granting an order in relation to a family member so that the child remains in the family. Some of these orders include:
- Child Arrangements Order – this is an order specifying whom the child should reside/have contact with. The person granted the Child Arrangements Order will share parental responsibility with the birth parents.
- Special Guardianship Order – this is an order specifying whom the child’s Special Guardian is. The Special Guardian is given the same responsibilities as the birth parents. Parental responsibility is shared; however, the Special Guardian has an overriding say over the child.
- Care Order – this is an order specifying that the child is to remain under the care of the Local Authority. A child can still reside with a family member or a friend if this is something the Local Authority agree to. In this instance, the family member or friend would be entitled to remuneration as a family and friend foster carer.
If no family member has put themselves forward to care, or if the assessments of family members are negative, then the Local Authority may consider placing the child in long term foster care or, as a last resort, placing them for adoption.
If the Local Authority are involved with your family and you require support, then please do not hesitate to speak to a member of our team.