The Welfare Test: Determining the Indeterminate
Author | |
DOI | 10.3366/elr.2018.0457 |
Published date | 01 January 2018 |
Date | 01 January 2018 |
Pages | 94-100 |
Many parting or never-together parents reach agreement on the future arrangements for the care of their child, sometimes with the help of a third party, e.g. a mediator. When they cannot agree, disputes may be particularly acrimonious and intractable, with
In reaching decisions about parental responsibilities and parental rights, the Scottish courts are directed, in terms of the Children (Scotland) Act 1995 (the “1995 Act”), to accord paramountcy to the welfare of the child concerned; to respect the child's participation rights; and to refrain from making any non-beneficial order.
The welfare test has something of a Janus-like quality, combining the virtue of flexibility with the vice of vagueness.
The welfare test, as applied to intra-family disputes, is found in Part I of the 1995 Act. Very much a product of the recommendations of the Scottish Law Commission (“SLC”), the statute directs courts to regard “the welfare of the child concerned as its paramount consideration”.
In 2006, in response to concern over two specific issues, the impact of domestic abuse on children and the obstruction of contact by the child's resident parent, the 1995 Act was amended. In assessing welfare, courts are now required to have regard “in particular” to the need to protect the...
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