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Family Law

The leading authority on all aspects of family law

14 APR 2015

Children Act 1989 (Child Arrangement Orders and more) – How can you try to persuade the court that your proposal is in the child's best interests?

Children Act 1989 (Child Arrangement Orders and more) – How can you try to persuade the court that your proposal is in the child's best interests?
Nasstassia Hylton, 1 Garden Court

In February 2015, the National Audit Office reported a 22% increase in cases involving contact with children and a 30% increase across all family court cases, in which neither party had legal representation.

Therefore when you attend the family court to represent yourself in Children Act cases, you need to be prepared to justify your case to the court when you are up against a variety of opponents (including barristers, solicitors, legal executives, your ex partner, or a family member).

There is likely to be emotion involved because of the significance of the issues concerned. However, the important thing to remember regardless of who your opponent is, is that the court will want to hear your presented case in a clear and practical manner that has the welfare of the child at the heart of it.

That is easy to say but how do you go about presenting this to the court?

This first thing to remember is that the child's welfare is the court's paramount consideration (Children Act 1989, s 1). Therefore, when you are explaining your case to the court, you ought to present your points with the focus being on why your argument is better for the child (rather than being better for you).

In addition, you will often here mention of the phrase 'the welfare checklist' when you are dealing with a Children Act 1989 case in court. This refers to the list of important factors that the court ought to have particular regard to when making decisions for a child. These factors are (Children Act 1989, s 1(3)):

(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);

(b) The child's physical, emotional and educational needs;

(c) The likely effect on the child of the change in circumstances;

(d) The child's age, sex, background and any characteristics which the court considers relevant;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable end 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 owners open to the court under the Children Act 1989.

These factors represent very important considerations when you are presenting your case to the court. They are also very crucial factors in terms of guiding you about what supporting evidence / documents you should try to present to the court in order to help your case.

On a practical level, it is useful to frame your case around a consideration of these factors, in order to assure the court that you have taken all relevant matters into account.

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Presenting your case

The court will generally want to know three main things:
  1. What outcome / court order you seek?
  2. Why is your preferred outcome in the best interests of the child? and
  3. Why is your opponent's outcome not in the best interest of the child?
Therefore using the factors in the welfare checklist (and informing the court that you have considered these) is likely to assist you in being persuasive in court.

Not all of the factors will be relevant in your case, therefore it is helpful to focus on the most relevant factors.

An example

For example, if the application before the court is for the child to move from the primary care of one parent to the other, you can frame either the application or your opposition to it with reference to the welfare checklist.

In support of the application to change the child's care arrangements you could argue that with reference to: (f) How capable end of his parents, and any other person in relation to whom the court considers the question to be relevant is of meeting his needs; (Children Act 1989, section 1(3)(f)) you are the more capable parent. Under this heading it would then be prudent to set out your evidence in support of this contention.

Conversely, if you oppose a change in the child's care arrangements, with reference to: (b) The child's physical, emotional and educational needs; (Children Act 1989, section 1(3)(f)) you could argue that the other parent is not able to meet the child's physical, emotional or educational needs. Under this heading you ought to then provide evidence and documents to the court in order to justify your position.

In summary, whilst the phrases such as 'in the best interests of the child's welfare' and 'in the best interest of the child' are often used in court, it is important for you to carefully present your arguments clearly with reference to the matters in the welfare checklist, and use the checklist to guide you about what evidence in support will be useful to the court to support your position. Thus ensuring that in spite of the likely emotion of the situation, you can demonstrate that you have thought clearly about the position with reference to the same matters that the court will be focused on.

Nasstassia Hylton is co-author of DIY Divorce and Separation: The expert guide to representing yourself. For more information visit the DIY Divorce website.
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