The Children’s (Northern Ireland) Order 1995 is the main legislation relating to children in Northern Ireland. An important feature of the legislation is that it generally directs judges to have regard to the child’s welfare in view of all the circumstances.
This allows for some consistency in approach but also gives judges discretion in the decisions they make. The reason for this is to allow judges to be able to deal with the different and complex personal and family circumstances of each case.
In the Family Proceedings Court, the judge may be supported by 2 Lay Magistrates to reach a decision - see Which court deals with family cases.
Legal principles
A judge in a family proceedings hearing will consider the following legal principles:
The welfare of the child
The child’s welfare is the paramount consideration and so is more important than any other factor. It means making a decision that is best for the child. It is known as the Welfare or Paramountcy Principle.
To help guide a judge’s decision, the law sets out 7 factors for them to consider - see below. A judge will pay particular attention to this checklist in deciding what is the child’s best interests.
Avoiding delay in the proceedings
A judge will try to avoid delay in reaching a decision where possible. Delaying a decision is understood not to be good for a child.
Considering whether it would be better to make no court Order
This is known as the No Order Principle and it requires a judge to only make an Order if doing so is better for a child than not making one.
Appointment of a Court Children's Officer
A judge may appoint a Court Children’s Officer (CCO) - a specialist social worker – to assist in providing information and make recommendations on what is in the child’s best interests, see below.
The CCO may meet the child to understand the child’s wishes and feelings.
A judge may take the CCO’s recommendations into account when deciding the case. If a judge does not follow the CCO’s recommendations, they will usually provide reasons.
Welfare Checklist
This animation explains how the judge decides arrangements for a child in a typical case. It does not show the complexity of a real life case.
How does the judge decide arrangements for a child?
Seven factors of the Welfare Checklist
During court proceedings, the judge is required to focus on the child’s welfare and will consider the factors in the Welfare Checklist.
The Welfare Checklist is found in Article 3(3) of The Children (Northern Ireland) Order 1995 and it includes these factors:
- The ascertainable wishes and feelings of the child (in light of their age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect of any change in the child’s circumstances;
- The child’s age, sex, background and any other characteristics which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the child’s parents, and any other person involved in the child’s care, is of meeting the child’s needs;
- The different types of Orders that the court can make in this type of case.
The judge will consider the child’s welfare in view of all the circumstances of the case and will balance these factors in reaching a decision.
Although the judge is required to consider them, they are not required to list them as specific factors in a written or oral judgment. They can also consider other factors at their discretion.
The factors explained
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The child’s wishes and feelings
One of the factors in the Welfare Checklist is the child’s wishes and feelings about the things that are being decided in court. This does not mean the judge will do whatever the child says they want, but they will take the child’s wishes and feelings into consideration.
It is unusual for the judge to hear directly from the child. Generally, the judge will rely on the Court Children’s Officer to find out the wishes and feelings of the child and make an assessment of them - see the Court Children’s Officer.
How the CCO does this depends on the age and maturity of the child. The judge will want to know that the child’s wishes and feelings are their own and have not been influenced by either parent.
If the judge has not requested a CCO report, they will make their decision based on the documents and evidence submitted by the parties.
The judge will give as much weight as they feel is appropriate to the child’s wishes and feelings depending on the child’s individual circumstances and the circumstances of the case.
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The child’s physical, emotional and educational needs
The judge will consider how the parties’ proposals will meet the child’s emotional, physical and educational needs.
This generally relates to the day-to-day care offered by each parent in caring for the child’s physical and emotional needs. Unsatisfactory or poorly maintained accommodation or living conditions may influence the judge’s decision.
The emotional welfare of the child is particularly important, and the CCO’s report will consider the closeness of the relationship between the child and each of the parents and other siblings. Sometimes this factor might require the judge to compare different styles of parenting – for example, each parent’s approach to schooling and home life.
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The likely effect of any change in the child’s circumstances
The judge will consider whether the application will have a negative impact on the child or whether any negative impact can be outweighed by any positive benefits. This is particularly important, for example, in relation to where the child lives. The judge will consider the possible benefits and negative impacts of this change.
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The child’s age, sex, background and any other characteristics which the court considers relevant
This covers a number of different factors within a child’s life. Every child is different and the judge will consider the application taking the child’s individual characteristics into consideration. These will include, for example, the child’s age, any religious or cultural needs or any disabilities they may have.
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Any harm which the child has suffered or is at risk of suffering
Safeguarding the child and protecting them from harm or risk of harm is very important. This includes witnessing or being aware of harm inflicted against others by a member of that household. The risk of harm or suffering is relevant in cases of domestic abuse and other cases where harm is alleged.
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How capable each of the child’s parents, and any other person involved in the child’s care, is of meeting the child’s needs
Where a parent applies to the court for the child to live with them or have contact, which involves the sole care of the child, the judge will consider if the parent can care for the child. The judge may have to consider serious questions of a parent’s capability and their ability and skills to care for the child.
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The different types of Orders that the court can make in this type of case
The judge is not limited to make only the Order being applied for. The judge has the authority to make an Order they consider in the child’s best interests even if it is different to what has been applied for. The judge’s view about what is best for your child may be different to yours.
Court Children’s Officers (CCO)
Court Children’s Officers work for the Health and Social Care Trust. They are seconded to the court. They are not employees of the court nor are they based at the court.
Their professional code of conduct requires them to be neutral, that is, not to take sides with any of the parties and to represent the views of the child rather than the parents.
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Role of the CCO
The judge can ask the CCO to do different things to help the case, including: safeguarding checks; investigations and reporting on the family’s situation; meeting with the child to understand their wishes and feelings; reporting to and advising the family court judge.
The judge can also ask the CCO to supervise a contact session between the child and their parent if concerns have been raised and the judge considers it necessary.
The judge may take into account any statement made by the CCO or any evidence they provide which is relevant to the case.
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CCO Article 4 Report
The judge may ask the Court Children’s Officer (CCO) to report on the family circumstances and obtain the wishes and feelings of the child. The CCO’s report is also known as an Article 4 report – named after Article 4 of The Children (Northern Ireland) Order 1995 which allows the CCO to make a report.
To prepare the report, the CCO may visit both parents’ homes, meet the child (depending on their age), and contact the family GP and the child’s school, if necessary. If the CCO is supervising contact sessions between the child and the non-resident parent, their opinion on contact sessions may be included in the report.
This report may be made orally or in writing, as the judge directs. The CCO will make an oral report in court and will give a written report to the judge and both parties. If you are not represented, ask the CCO how you can access the written report.
The judge may take the recommendations in the report into account when making a decision. If the judge does not follow the CCO’s recommendations, they will usually provide reasons.
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You and the CCO
Any party in the case – the applicant or the respondent – can contact the CCO to find out more about how they conduct their assessment. The CCO should swap contact information with the parties once they have been appointed.
The CCO will use the Welfare Checklist as a guide for preparing their report. The report will include recommendations, for example, on which parent the child should live with, the amount of time the child should spend in each parent’s care, the court Orders relevant to the family’s situation and an explanation of any issues related to the application.
The CCO gives the report to the judge and the parties in writing or they present it orally at a hearing.
If it is given in writing, the CCO sends it to the court and to the parties. If you do not have legal representation, you should ask the CCO how you will be provided with a copy of the written report.
If the CCO gives it orally, you should take very careful notes of what they say during the hearing.
It is important to know what the CCO reports in case you do not agree with it. If you are unrepresented, you could ask the judge that any report is in writing so you can consider it fully and understand it.
As the CCO’s report is written by an independent specialist social worker and is required to be impartial and focused on the child’s interests guided by the Welfare Checklist, the report generally carries a great deal of weight with the judge.
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If you disagree with the CCO’s report
If you disagree with the contents or recommendations of the CCO’s report, you should tell your legal representative, or if you are unrepresented, tell the judge as soon as possible and explain why you disagree with the report.
It may be necessary to use a Form C2 in order to raise your dispute in court. If you wish the CCO to be present at court so you can ask them questions (cross-examine them), you use the Form C2 to ask the judge to instruct the CCO to attend the hearing - see Applying in ongoing proceedings.
When making a decision, the judge will consider the CCO report as well as the Welfare Checklist and evidence given by the applicant and respondent during the hearings.
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Confidentiality of case documents
It is important to remember that in proceedings involving a child, no document from the court proceedings can be shared with any other person except a party, a legal representative or a welfare officer without the permission of the judge. This includes the CCO’s report.
If you do not have legal representation and you are assisted by a McKenzie Friend, you can ask the judge for permission to share all papers related to the application with them - see Get support - McKenzie Friend.
A request for documents to be shared with another person can be made during a hearing or formally in Form C2 and submitted to the court. It should set out the reasons for the request - see Quicks links to court forms.
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CCO at hearings
The judge may ask the CCO to give updates on progress, called oral reports, at review hearings as proceedings progress. For example, the judge may want to hear about how contact sessions between the child and the non-resident parent are going.
If you do not agree with the CCO’s recommendations, you can tell the judge during a hearing so that they will be able to make a decision on whether the CCO will likely have to attend to be cross-examined.