FAMILY LAW
LARGE GROUP 4
Student Guide
Private Children Law: The Welfare Principle and s8 Orders
Context
You have been introduced to the concept of parental responsibility for children and
legal parenthood. In this unit we begin to consider decision making for children and
what happens when parents cannot agree on arrangements for their children.
If parents cannot agree, the matter will ultimately come before the courts in the form
of an application under the Children Act 1989. Under s8 of the Children Act 1989
the court has the power to make so called ‘s8 orders’ to resolve questions about
children such as who the child shall live with and who the child shall spend time with.
You will look at the matters the court must have regard to when deciding on these
issues, most notably the welfare principle and the factors the court will also need to
apply when deciding what is in the best interests of the child. You will consider if the
welfare principle is compliant with the Human Rights Act 1998.
Outcomes
By the end of this Large Group and Workshop 4 you should be able to:
1. Describe the development of the welfare principle.
2. Explain the welfare principle and the welfare checklist and its use in the context of
s8 orders and the presumption that the involvement of each parent in the life of
the child will further his welfare.
3. Explain if the welfare principle is compliant with the Human Rights Act 1998.
4. Demonstrate an understanding of the statute law on international relocation of
children.
, 1. The Changing nature of the Parent – Child Relationship
1.1 Guardianship of Infants Act 1925
As well as giving mums right to seek court order, to give them authority over
their children in certain circumstances
Required that in reaching decisions on child’s upbringing, the court was to
regard the child’s welfare as the first and paramount consideration
First interpreted as raising status on mother- contained provision that court
shouldn’t regard the claim of father as superior to the mother nor vice versa
Clarified in this case
J v C [1970] AC 668
Dispute b/w Spanish parents and English foster parents
Spanish- good parents – placed child with foster parents
As child was suffering poor health due to their poor living conditions
Years later- situation improved so wanted child back
Court- decide between
Parent argued the principle – only trying to dispute between parents and not
between parents and third parents
Court rejected the argument- child’s welfare was so overwhelmingly important
that it was outweigh the interest of unimpeachable parents
Court- child’s interest was to remain with the English foster parents
1.2 Guardianship Act 1973
Aim- reducing disparity b/w mothers and father
Stated their right should be equal
Act retained the paramount requirement – for the welfare the child
Welfare of child- sole consideration (by late 80s)
1.3 Children Act 1989
s1(1) the Welfare Principle
Children’s interest is courts paramount consideration
Requirement – mediation – in all cases
Result of s10(1) children family act 2014- required parties to have a MIAM –
mediation, information, assessment m..
If cant resolve even with miam- make application with court
2. Children Act 1989 s8 Orders
2.1 Child Arrangements Orders
“a child arrangements order” means an order regulating arrangements relating to any
of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
LARGE GROUP 4
Student Guide
Private Children Law: The Welfare Principle and s8 Orders
Context
You have been introduced to the concept of parental responsibility for children and
legal parenthood. In this unit we begin to consider decision making for children and
what happens when parents cannot agree on arrangements for their children.
If parents cannot agree, the matter will ultimately come before the courts in the form
of an application under the Children Act 1989. Under s8 of the Children Act 1989
the court has the power to make so called ‘s8 orders’ to resolve questions about
children such as who the child shall live with and who the child shall spend time with.
You will look at the matters the court must have regard to when deciding on these
issues, most notably the welfare principle and the factors the court will also need to
apply when deciding what is in the best interests of the child. You will consider if the
welfare principle is compliant with the Human Rights Act 1998.
Outcomes
By the end of this Large Group and Workshop 4 you should be able to:
1. Describe the development of the welfare principle.
2. Explain the welfare principle and the welfare checklist and its use in the context of
s8 orders and the presumption that the involvement of each parent in the life of
the child will further his welfare.
3. Explain if the welfare principle is compliant with the Human Rights Act 1998.
4. Demonstrate an understanding of the statute law on international relocation of
children.
, 1. The Changing nature of the Parent – Child Relationship
1.1 Guardianship of Infants Act 1925
As well as giving mums right to seek court order, to give them authority over
their children in certain circumstances
Required that in reaching decisions on child’s upbringing, the court was to
regard the child’s welfare as the first and paramount consideration
First interpreted as raising status on mother- contained provision that court
shouldn’t regard the claim of father as superior to the mother nor vice versa
Clarified in this case
J v C [1970] AC 668
Dispute b/w Spanish parents and English foster parents
Spanish- good parents – placed child with foster parents
As child was suffering poor health due to their poor living conditions
Years later- situation improved so wanted child back
Court- decide between
Parent argued the principle – only trying to dispute between parents and not
between parents and third parents
Court rejected the argument- child’s welfare was so overwhelmingly important
that it was outweigh the interest of unimpeachable parents
Court- child’s interest was to remain with the English foster parents
1.2 Guardianship Act 1973
Aim- reducing disparity b/w mothers and father
Stated their right should be equal
Act retained the paramount requirement – for the welfare the child
Welfare of child- sole consideration (by late 80s)
1.3 Children Act 1989
s1(1) the Welfare Principle
Children’s interest is courts paramount consideration
Requirement – mediation – in all cases
Result of s10(1) children family act 2014- required parties to have a MIAM –
mediation, information, assessment m..
If cant resolve even with miam- make application with court
2. Children Act 1989 s8 Orders
2.1 Child Arrangements Orders
“a child arrangements order” means an order regulating arrangements relating to any
of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
