The court rules provide an 'overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved'.
The main principles behind the law can be summarised as follows
- the child’s welfare shall be the Court’s ‘paramount consideration’;
- delay is likely to prejudice the welfare of the child;
- the Court shall not make an Order unless it considers it would be better for the child than making no Order.
The factors the Court must have regard to are set out in Section 1(3) of the Children Act 1989. This is a checklist which states:
… a court shall 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.
Courts do not leave it to children to decide for themselves but their wishes do increasingly count, depending on their level of maturity and understanding.