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in the standard could put children’s welfare at risk because it would inevitably reduce the emphasis given to welfare.” 354

Checklist of factors

3.68Section 1(3) of the 1989 Act contains a statutory checklist of factors to assist the courts in carrying out their duty.  It provides:

“In the circumstances mentioned in subsection (4),355 a court shall have regard in particular to:

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)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;

(g)the range of powers available to the court under this Act in the proceedings in question.”

Advantages

3.69The checklist was perceived as a means of providing greater consistency and clarity in the law and as a step towards a more systematic approach to decisions concerning children.  It was hoped that all the professionals involved would use the same basic factors to implement the welfare principle.  Both parents and children would also find the list helpful in finding out how judicial decisions are made and to focus their attention on relevant issues.  As it would enable the parties to prepare and give relevant evidence at the outset, the delay and expense of prolonged hearings or adjournments for further information could be avoided.356

3.70Dame Margaret Justice Booth supported the use of a checklist:

“By this checklist the statute enjoins the court, in exercising its discretion, to keep in the forefront of its mind the child with which it is concerned.  In some instances when difficult findings of fact have to be made, for example, as to the perpetration of sexual abuse, or when adult relationships are complex or personalities are strong, it is easy for the focus of attention to move away from the child whose future is at stake and to become concentrated instead on the adults involved.  The provision has the salutory effect of bringing the court back on course.”357

354 Ibid at 526.

355 The circumstances are that the court is considering whether to make, vary or discharge a section 8 order and this is opposed by any party to the proceedings.

356 Law Com No 172, paragraph 3.18.

357 Dame Margaret Justice Booth, “The Children Act 1989 - the Proof of the Pudding”, Statute Law Review, vol 16, No 1, (1995) at 16.

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