Special guardianship orders
2. The welfare checklist
The welfare of the child is the most important consideration of the court. A special guardianship order will not be made if the court does not feel it is in the child’s best interests.
Once a special guardianship order has been made, the special guardian will normally be the permanent carer for the child until he/she reaches the age of 18 years.
When the family court is making a decision on matters that will affect a child, the child’s welfare is paramount. The welfare checklist is seven statutory criteria that the courts must consider under the Children Act 1989 when reaching its decision in cases involving children.
The seven criteria set out in the welfare checklist under s1(3) Children Act 1989 are:
The court must consider the wishes and feelings of the child, taking into account the child’s age and level of understanding in the circumstances. The Children and Family Court Advisory and Support Service may be appointed to report to the court. Alternatively, the views of the child could be gained by a social worker. There may be disagreement between the parents’ or guardians’ views, and that of the child. The court will balance the views of the parties concerned, including the views of a child who is able to form their own opinions.
The court will consider who is best placed to provide for the child’s emotional, physical and educational needs. They will look at both in the short term and long term.
The court will look at the potential impact of changes to the child’s life. The courts will aim to make an order that causes the least disruption to a child’s life. However, this will be balanced against the other factors.
The court will consider specific issues such as religion, race and culture when making a decision about a child. They may also take the guardians’ hobbies and lifestyle choices into account if they feel this will affect the child’s life.
The courts will look at the risk of harm to the child. This includes:
- harm the child has suffered
- immediate risk of harm
- the risk of harm in the future
Harm includes physical, emotional and mental harm. The courts will weigh up potential risk to the child in future. An order may include safety measures to protect the child.
The court will consider how able each parent or guardian is to care for the child, and meet their needs. This will be subjective and depend on the facts and circumstance of each case.
The court must weigh up all the factors under the welfare checklist, and consider all the orders they are able to give. It will then make an order that is in the best interests of the child.