Children Act 1989

Chapter 2 looks at the best interest’s principle used by the courts, and how this is interpreted in a family mediation.

The Children Act (CA) 1989 lays down the law concerning the ‘best interest’s principle’. All of the sections discussed in this project originate from this Act. The Act ensures children, unable to campaign for their own rights, come under the protection of the law. Lord Mackay described the Act as ‘the most comprehensive and far-reaching reform of child law…in living memory’. Guggenheim however, sees it as a way of ‘encouraging parents’ into battling against each other regarding who is better suited to look after the child.

S1(3) CA 1989 states that the court must have regard to the welfare checklist, in cases concerning

Regard needs to be had to the child’s age and understanding. By doing this, it is evidence of best practice, as children have a better grasp of their own needs than adults may. Commentators, such as Sturge and Glaser, have sought to suggest that ‘the older the child, the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored’.

There is a clear obligation for the court to have regard to this section. A Cafcass officer is the main method of communication for a child during court proceedings. However, the law remains unclear on the obligation of others, such as mediators. For this reason, the Mediation Code of Practice was developed. Under which, the mediator must ‘encourage participants to consider the children’s wishes and feelings’. Children from the age of 10 ‘should be offered the opportunity to have their voices heard directly during mediation’. This should be available to children who wish to do so. Consent to consult must be obtained from both parties, the mediator, and the child in question. The mediator must be specifically trained to carry out direct consultation with the

There is a reluctance to ‘interfere with this status quo’ unless vital to do so, as a disturbance with a child’s routine can have a profound impact. During mediation, it is often the case that new arrangements are put in place for children. Parties must consider the potential detrimental effect to the child.

Age, sex & background

S1(3)(d) CA 1989 considers the child’s age, sex, and background and any other relevant characteristics. Children of differing ages are to be considered according to their age, rather than all children considered on the same standard. A young child may be susceptible to external influences. An older child may also have a distorted understanding if their views and opinions on the matter have also been subject to external influence. This factor is thought to why children are discouraged from attending a mediation meeting, due to the influence they will be potentially subjected to, on behalf of their parents.