Criteria to Be Applied - Welfare Must Be the Paramount Consideration
| Author | Nasreen Pearce/Richard Budworth |
| Pages | 79-87 |
Chapter 7
Criteria to Be Applied – Welfare Must Be the Paramount Consideration
INTRODUCTION
7.1 The ACA 2002 makes the welfare of the child the central principle to be applied whenever a court or adoption agency makes any decision concerning the adoption of a child. ACA 2002, s 1(1) and (2) provides that whenever a court or an adoption agency is coming to a decision relating to the adoption of a child, the paramount consideration of the court or the adoption agency must be the child’s welfare throughout his life. This paramountcy principle is to be given a wide interpretation and includes all matters that may affect the child not only during his childhood, but also into adulthood and beyond (FAS v Secretary of State for the Home Department and Another [2015] EWCA Civ 951). In determining where the child’s interests lie, the court will need to consider the child’s family ties and to ensure the child’s development in a safe and secure environment (YC v United Kingdom (Application No 4547/10) (2012) 55 EHRR 33, [2012] 2 FLR 332, ECtHR). This includes decisions not only on an adoption order, but also on a placement order (or revocation of an adoption or placement order) dispensing with consent, contact and decisions about granting permission in respect of any other action (ACA 2002, s 1(7)). See also D McG v Neath Port Talbot County Borough Council [2010] EWCA Civ 821, [2010] 2 FLR 1827, where it was held that all options towards rehabilitation should be explored before a placement order is sought and the guidance given in Re H (Care and Adoption Assessment of Wider Family) [2019] EWFC 10 at [49]–[56] (see paras 4.63–4.64).
CRITERIA TO BE APPLIED TO WELFARE CONSIDERATION
7.2 When considering the welfare of the child, the court or adoption agency must have regard to the following factors (among others):
80 Adoption Law: A Practical Guide
(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding);
(b) the child’s particular needs;
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted child;
(d) the child’s age, sex, background, and any of the child’s characteristics which the court or agency considers relevant;
(e) any harm (within the meaning of the ChA 1989) which the child has suffered or is at risk of suffering;
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including:
(i) the likelihood of any such relationship continuing and the value to the child of its doing so;
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs;
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child (ACA 2002, s 1(4)).
7.3 Since 25 July 2014, in Wales, an adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background (ACA 2002, s 1(5)).
7.4 In addition, decision makers must at all times: (a) bear in mind that, in general, delay in coming to a decision is likely to prejudice the child’s welfare; and (b) consider the whole range of options available to them in the child’s case, whether under the ACA 2002 or the ChA 1989, and the court must not make any order in relation to the child unless it considers that making the order would be better for the child than not doing so (ACA 2002, s 1(6)).
THE CHILD’S WISHES AND FEELINGS
7.5 The reference to the child’s ascertainable wishes and feelings considered in the light of his age and understanding is in terms similar to those in ChA 1989, s 1(3)(a). In addition, under ChA 1989, s 25(5)(a), a local authority is obliged, before making any decision with respect to a child whom it is looking after, or proposing to look after, to give due consideration ‘having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain’. While there is no requirement to comply with the child’s wishes and feelings, these are nevertheless matters which the local authority is specifically required to consider from the moment the child comes into its care. The ACA
2002, while not giving this factor greater weight than any of the others referred to, nevertheless reinforces the importance of giving it proper consideration. It is one among many other elements which must be considered, and usually has greater importance the older the child. Much depends on the circumstances of the case, and on the age, maturity and intellectual understanding of the child. Also relevant may be whether the child’s views have been influenced by any other person, and if so, by whom.
7.6 The child’s wishes and feelings have to be assessed in the light of his understanding. How then is this to be assessed? In most cases, assessments are carried out during care...
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