Definitions and principles — Overview  

Introduction

Changing social morals about the place of children in family life over the past century have been reflected in changes to the legal principles concerning them. The current position is based on the idea that children have rights, their parents have obligations to honour those rights, and child welfare and interests are required to be at the centre of arrangements, following changes to familial relationships. This represents a move away from the traditional focus on parental rights to guardianship, custody and access in favour of the apportionment of responsibilities for the rearing of children and promoting their contact with other family members.  

Best interests of child

In any matter concerning upbringing arrangements for children — guardianship, day to day care, contact — the overriding consideration is their welfare and best interests in the context of the child’s particular circumstances (one size does not fit all).   The statutory principles concerning child welfare and best interests require:

  • The conduct of parents to be taken into account only if relevant to the child’s welfare/interests;
  • No assumptions to be made about gender advantages of particular parents;
  • Decisions about children to be made and implemented in a way that incorporates the particular child’s sense of time;
  • An acceptance that a range of matters may need to be taken into account before welfare and best interests can be determined in any particular case
  • Parents/guardians to:
  • Have the primary responsibility for their children’s upbringing;
  • Be encouraged to conclude their own arrangements for the rearing of their children; and
  • Consult and co-operate with each other, those involved in their child care arrangements and other family members to best facilitate the development and rearing of their child/ren;
  • The preservation and strengthening of the child’s:
  • Relationships with members of the wider family group, who should also be encouraged to participate in the development and rearing of the child; and
  • Cultural, religious and language identity;
  • The child to be kept safe and protected from all forms of violence:
    • As defined in the Domestic Violence Act 1995
    • Having regard to past or existing protection orders, the circumstances in which it was made, and any reasons given for the protection order given by the Judge.
  • The child’s views about a guardianship, care or contact or property proceeding concerning them to be taken into account;
  • A lawyer to be appointed by the court to act for a child if the Court has concerns for the safety or well-being of the child and considers an appointment necessary.
  • The child to be the paramount consideration in property proceedings concerning a child.

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