Family Law and Policy:

The Children Act 1989 is the key legislative framework in England and Wales, that deals with parental disputes over children.  When legal proceedings do commence, the Act's overriding purpose is to safeguard and promote the welfare of the children involved.  The Act achieves this through a set of main principles that are embodied into the legislation:  These are:

• In all situations ‘the child's welfare shall be the court's paramount consideration'
• Delay in deciding questions which may arise is likely to prejudice the welfare of the child in deciding any question on the upbringing of the child,
• The court shall have regard to the welfare checklist (see below for description)
• The ‘No Order' principle - the court should not make an order unless it considers making an order is better for the child

The Welfare Checklist

To ensure that the courts act in the best interests of the child when making an order, Section 1(3) of the Children Act 1989, requires that a checklist be taken into account when making decisions about the upbringing of the child.  Under the Welfare Checklist, the courts must have regard, in particular, to:

(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the court considers relevant;
(e) Any harm which he has suffered or is at risk of suffering;
(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;
(g) The range of powers available to the court under this Act in the proceedings in question.

(For simplicity's sake, the Children Act 1989 uses the term "him" to refer to all children)

The Court Process

When parental disputes require that the court make decision on how matters should be resolved, then a judge may find he must make an order, which stipulates what is required of each party.  Section 8(1) of the Children Act 1989 allows the following four types of order to be made:

• Contact Order
• Prohibited Steps Order
• Residence Order
• Specific Issue Order

Where it is not possible for the court to make an immediate judgement or in order to address particular issues, it may be necessary for the judge under Section 7(1) of the Children Act 1989 to ask a CAFCASS officer to report on matters relating to the welfare of the child, which are relevant to the issues the court is considering.  Such information is usually provided in written format (the welfare report), but can also be provided orally to the court.  The courts are closed to the general public and the proceedings are confidential.  

Children and Family Court Advisory and Support Service (CAFCASS)

CAFCASS is the organisation responsible for advising family courts on what it considers to be in the best interests of individual children involved in family proceedings.  Set up in April 2001, CAFCASS is a non-departmental public body and is independent of all other agencies, including the courts.  The role of CAFCASS is to safeguard and promote the well-being of children and to give advice to the court in both private and public law cases and provide support and information for families.  CAFCASS only get involved in family proceedings when a judge asks them to report on a particular issue - CAFCASS are the eyes and ears of the court.  This process can take several months and usually involves a CAFCASS officer, who is a qualified social worker, interviewing both parents separately and collecting a full history of the relationship and also the views of each parent.  The CAFCASS officer may also wish to observe the child with the parents, and if age appropriate also talking to the children to ascertain their wishes.  The CAFCASS report must include each of the factors in the Welfare Checlist.  On completion, the welfare report is made available to all parties involved.  At the following hearing or if matters still remain disputed, at a contested/full hearing, the courts will make a decision based on the evidence and the recommendations made by the CAFCASS officer in the welfare report.

Contact Enforcement Measures

The Children and Adoption Act 2006 which came into force on 8 December 2008, provides new ways to help the courts find solutions in contact cases where there is conflict between the parents about whom a child should see and how often."

Courts will have more flexible powers to resolve conflicts between parents in contact cases as a result of the implementation of the remaining provisions of Part 1 of the Children and Adoption Act 2006.
The government is committed to the principle that the well-being and interests of the child are of paramount importance. It is known that prolonged disputes over contact are damaging to children. The new powers will therefore allow the courts to deal with more flexibly with cases where parents cannot reach agreement or fail to comply with a contact order.  The new rules include:

• Giving the court power to direct a party to the case to undertake a contact activity
• Providing the court with the power to attach a contact activity condition to contact orders
• Enabling the court to award financial compensation from one person to another for losses arising from failure to comply with the order
• Enabling the court, upon application, to impose an unpaid work requirement on the person who breaches the contact order.