Should the law in relation to contact and residence orders be amended to include a presumption that children should live with their genetic parents, unless their welfare positively demands otherwise?
There has been much debate to the law in relation to contact and residence and whether there should be a presumption that children should live with their genetic parents unless their welfare positively demands otherwise. This essay will look at the advantages and disadvantages on whether the child’s best interest lies on being with their genetic parent or not. The children act 1989 has been put in place for the protection and welfare of the child(s). When considering the child(s) welfare, section 1 of the act states that the children(s) welfare is the courts paramount consideration. The court also uses the welfare checklist, which comes under s.1 (3) of the children act 1989, in order to determine that the child(s) best interests are being kept priority. The courts have to regard the welfare checklist, the checklist must consider the child’s wishes and feelings, his physical, emotional and educational needs, the likely effect of any change in his circumstances, his age, sex, background and any characteristics of which the court considers relevant, any harm which he has suffered or is at risk of suffering, how capable each of the parents are or another person whom the court considers is of standards of meeting his needs and the range of powers available to the court under this act in the proceedings in question. A residence order is an order that settles the arrangements to be made as to the person with whom a child is to live and can be joint or shared as shown in the case D v D (shared residence orders) 1 FLR 495 where the father applied for a joint residence order however the mother sought a change in the contact pattern but the trial judge accepted the fathers case and made a shared residence order the judge dismissed the mother’s application and ordered her to pay the costs of the hearing. The reason for this decision was due to the fact that the father had shown he had the children’s best interest. A contact order is an order which requires the person with whom a child lives, to allow that child to have contact with the person named in the order for example in the case of Re W, the mother terminated the fathers contact to the child, W. The father sought a contact order but the mother said she would rather go to prison than allow contact. The father appealed and the courts said they cannot be put into a position of having to balance this against a party’s disobedience to its orders. A child has the fundamental right to have contact with both parents, unless circumstances allow otherwise. The law in relation to contact and residence is based on the child’s best interest and not the parents’ wishes. The courts would prefer if the parents voluntarily agree to what is best for child rather than court settlements as they are more likely to be adhered to.
When deciding a child’s welfare in court, it is important to consider the welfare checklist while taking the child’s wishes and interest into account and also considering the situation between both parties, it can be a difficult decision because it can affect a child greatly if their life becomes unbalanced, a responsibility which lies with the judge. In the case of Re G, Thorpe LJ “accepts the propositions that the identity of a child’s natural (biological) parent is always a matter of significance and that in each case the weight to be given to the blood relationship will depend upon the matter in issue, the identity of the parties and the courts assessment of all other factors in the welfare checklist.” Although being the biological parent has a small significance in deciding the outcome for a child’s future, Thorpe LJ also puts emphasis on the welfare checklist, the parties interests in the child and what is best suited for the child’s interest and wishes. For...
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