The Court’s Approach to Children

If you’re divorcing and you can’t agree about the arrangements for your children, you could end up applying to the court for an order. So, how do courts deal with issues relating to children? Do you always have to go to court? What factors relating to your child do the courts consider? And can your child have a say in court proceedings? Keep reading for answers to these questions and more.


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Do I always have to go to court to sort out an issue with my child?

No. When you’re making decisions about what’s best for your child, you should consider the alternatives to court. Keeping your disagreements out of court may help you to stay in control of the outcomes and should help you come to an arrangement more quickly.

There is a general principle that it is better for parents and children to come to a decision themselves regarding arrangements for children. Collaborative options such as lawyer-to-lawyer negotiation or mediation can also help you to reach agreement.

Bear in mind that even if you go to court, a court will only make an order relating to your child if it considers it is better for your child than making no order.

If I come to an agreement outside court, can I make this legally binding?

If you come to an agreement with the other parent, there is no need to go to court and so no court order will be made.

You can turn your agreement into a legally binding order if you wish. You can ask a judge to approve the arrangements you have made, and a family solicitor can help you with this.

What is the court’s primary concern when dealing with cases involving children?

The Children Act 1989 enshrined the ‘welfare principle’ which guides every decision that is made in a family court. This states that the welfare of your child shall be the paramount consideration of any court.

Courts also work on the principle that the welfare of a child is best supported by making swift decisions. Courts try and work quickly, especially in care proceedings.

What factors relating to my child will the court consider?

There are several factors that a court will take into account when considering a case involving your child.

These include:

  • Your child’s emotional, physical and development needs
  • What effect any change in their circumstances would have on your child
  • Your child’s own wishes and feelings (depending on their age – see the section below)
  • How capable each parent is of meeting the needs of your child
  • Any harm which your child has suffered or is at risk of suffering
  • Your child’s age, gender, background and any unique issues which are relevant
  • The range of powers the court has to ensure the best outcome for your child.

Your situation is unique and so the court will balance the factors above before arriving at a decision. For example, if your child is older than the court may place more weight on their wishes (see the next section).

Can my child have a say in court proceedings?

Yes. Since a Supreme Court case in 2010, courts have worked to guidelines which explain the circumstances in which children can give evidence in court and make their wishes known.

If your child is aged 10 or over they are likely to have the option to make their wishes and feelings known as part of the court process. They can also have their voice heard in collaborative processes such as mediation. This can be done by:

  • your child writing a letter to the court
  • through the report of a CAFCASS office (see below)
  • the child being part of the proceedings.

Courts will weigh up the advantages of a child giving evidence in order to achieve the best outcome against the possible harm that may occur as a result of them speaking out. For example, children can feel pressurised by one parent and feel as if they must take sides.

The focus of courts is to ensure that your child feels their voice is being heard when decisions are being made about their life. However, court guidelines and safeguards still mean that it is rare that your child will have to attend court and give evidence.

Remember also that the wishes and feelings of your child are just one of the factors a court will consider when making a decision.

What is CAFCASS?

CAFCASS is the Children and Family Court Advisory and Support Service.

The job of CAFCASS is to represent children in family courts in England. They ensure that the voice of a child is heard during family court hearings and help to ensure that decisions are made in their best interests.

CAFCASS is independent of the court, social services and education authorities. If you are attending family court and your hearing involves a child, a CAFCASS officer may be asked by the court to work with you, the other parent and your child to prepare a report. Their job is to provide the court with advice on what they believe is in the best interests of your child.

CAFCASS get involved in three main areas of family law:

  • Divorce and separation, where you can’t come to an agreement regarding the arrangements for your child
  • Adoption cases
  • Care proceedings, where social services have concerns about your child’s welfare.

Will the court always make an order in a case involving a child?

No. A court will only make an order if they believe it is better for your child for an order to be made than no order at all.

The general principle of the court is that it is better for you to come to an agreement with the other parent rather than court making a decision.

Do the courts favour mothers in cases involving children?

No. In the past there has been a belief that courts favour mothers but as gender roles change court decisions have evolved.

As more mothers work and more fathers act as caregivers for children, court decisions have changed accordingly. Courts place just as much priority on a father’s position as they do the mother’s, and there is no bias in the court process. Whilst it is still more common in the UK for the mother to be the primary carer of the child before the divorce, and so subsequently remain the primary carer after divorce, decisions by the court are made based on what is best for your child, not along gender lines.


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