CHAPTER 6: Welfare checklist in Children
116. The Constitutional Affairs Committee recommended
an amendment to the "welfare checklist" in the Children
Act 1989 to ensure that the courts have regard to the importance
of sustaining a relationship between the children and a non-resident
parent. That Committee argued: "Such an amendment would send
a clear message to the courts, to parents and to their professional
advisers about the importance of maintaining links between both
parents and their children".
117. Several of our witnesses agreed with this
recommendation. For example, in response to a question about whether
this should be included in the checklist, Mr Kirk of the FLBA
"I think at the moment we tend to take that
as taken for read, but there is certainly no harm in spelling
it out there, right at the very front of the Children Act."
118. However, the Ministers raised the following
"There is a reference already to parents in
there. If you put in a further reference saying that it would
be a good idea for non-resident parents to have access, I think
you would be muddying the waters. It is the usual argument about
muddying the waters over the paramountcy of the interests of the
"we had quite a debate when we were producing
the Green Paper about whether it was useful to write into statute
what was already in the common law, because the common law position...
is absolutely clear that, except with very clear evidence to the
contrary, it is in the child's best interest to have a meaningful
relationship with both [parents]. For that reason, we did not
think that there was any real benefit in putting it into statute."
119. The reference to parents in the welfare
checklist is in section 1(3)(f), which provides that a court shall
have regard to "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".
120. The Ministers' second argument, that the
addition would only reflect current practice, seems to contradict
the first, that it would muddy the waters. On balance, we conclude
that it would be useful to have in statute what is already considered
sound practice by the courts.
121. We endorse the recommendation of the
Constitutional Affairs Committee that an amendment should be made
to the 'welfare checklist' in the Children Act 1989 to ensure
that the courts have regard to the importance of sustaining a
relationship between the children and the non-resident parent.
96 Family Justice: the operation of the family law
courts, para 153 Back
Q 17 [Mr Kirk] Back
Q 330 [Margaret Hodge] Back
Q 330 [Lord Filkin] Back