The Welfare Principle has been described as the “golden thread” of decision-making. It represents the paramountcy of the welfare of the child when decisions are being made about them. According to Section 1(1) of the Children Act 1989, when a court determines any question with respect to the upbringing of a child, or 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”. Paramount means that “the welfare of the child should come before and above any consideration in deciding whether to make an order”. The limitation of this is that the welfare principle will not apply to the determination of other questions which are outside of the ambit of s 1(1). This is known as the Richards Principle as in the case of Richard v Richard 1984 it was held that while the child’s welfare was a relevant consideration to the case about domestic abuse legislation, it was not paramount as it did not concern the upbringing of the child.

“Welfare” is not defined by the Children Act however there exists a welfare checklist in section 3(1) which indicates some of the issues that may be relevant. These include:

• 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 on him 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 the Children Act in the proceedings in question.

When does the welfare principle apply?

Under section 4(1) of the Children Act, the welfare principle applies where the court is considering whether to make, vary or discharge a section 8 order, and that is opposed by any party to the proceedings, or where the court is considering whether to make, vary or discharge a special guardianship order or an order under Part IV Children Act (Care Order, Supervision Order, Interim Order, Discharge of any of the above). The welfare principle does not apply to Emergency Protection Orders as this takes into account the non-delay principle and requiring a full welfare analysis could endanger the child further.

Where the welfare principle applies, then it is welfare – rather than wishes – that is the governing principle. In some cases, the child’s welfare will require that their wishes are given effect. This is likely to occur with older children and those who are considered Gillick competent.

Even if you believe a decision is the right one for your child, the court may be entitled to make a different decision about the child’s up bringing if it is held to be in the child’s best interests.

If you wish to book in for an initial consultation to discuss your situation our family solicitors are based in both Wolverhampton and Cradley Heath and serve clients across the West Midlands. For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.