In determining any question relating to the upbringing of a child, the child’s welfare is the court’s paramount consideration. Known as the ‘paramountcy principle’, this is always the overriding factor.
In deciding whether to make an order relating to a child the court will have regard to all of the circumstances and in particular the following:
• The ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding). There are no hard and fast age rules relating to this, but a
reasonable rule of thumb might be that the court would pay some attention to the wishes of a child under 10, considerable attention to the wishes of a child between 10 and 14, and would be likely to follow the wishes of a child over 14, unless they were clearly unreasonable. Obviously, the court will be alert to the possibility of one parent trying to turn the child against the other but this can still cause great problems, especially with older children where it may be impossible to force them to do something against their wishes.
• His or her physical, emotional and educational needs. This can cover such things as physical disability, long-term illness, special health needs and special educational needs. Obviously, these matters can have a significant bearing upon the child’s welfare. It also covers basic matters such as housing, including suitable sleeping arrangements for the child.
• The likely effect on him/her of any change in his/her circumstances. This can be relevant to contact applications but is most relevant to applications involving a change of residence, especially where there is considerable distance between the homes of the parents. Such matters as change of schools and moving away from friends can be particularly relevant. There is also the issue of changing long-standing arrangements, which may have a disturbing effect upon the child.
• His/her age, sex, background and any characteristics of his/ hers which the court considers relevant. This is less often a factor than most of the other circumstances listed here. It is sometimes argued that young children and teenage girls are better off residing with their mothers, although such arguments carry less weight now than they used to do.
More relevant, perhaps, is the situation where the child has a particular emotional attachment to one parent.
• Any harm which he or she has suffered or is at risk of suffering. This can include emotional as well as physical harm. Obviously, if the child has suffered harm previously whilst in the care of one parent, whether by that parent’s actions or neglect, then this will be a very important factor in any application. There may also be concerns about the level of care which one parent can give in the future, which often links with the final matter:
• How capable each of his or her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs. This, of course, relates primarily to parenting skills. Again, the age of the child can be a factor, with mothers of young children arguing that only they have the necessary skills to look after the child. Also relevant though are the practicalities such as work commitments – if these necessitate the child being left with a carer or relative, then their capability of meeting the child’s needs also becomes relevant.