From time to time I glance at recent family law decisions from other jurisdictions, in particular Scotland and the Republic of Ireland. Sometimes I even write about them. It’s always interesting to see how the law operates in other jurisdictions, particularly jurisdictions that have a connection with our own.
Yesterday I was glancing through a High Court of Ireland decision concerning an appeal by a mother against what we would call a ‘contact order’, and what the Irish system still sensibly refers to as an ‘access order’. What I found of interest was not the case itself, but the reference in it to the Irish version of what we call the ‘welfare checklist’, i.e. the list of factors to which the court must have regard when deciding whether to make an order relating to a child, such as a child arrangements order. The Irish version is similar to our own, but the differences are instructive.
Before coming to the checklist itself, both jurisdictions set out what they both call the ‘paramount consideration’ for the court when dealing with a case concerning a child. In this country the paramount consideration is the child’s welfare. In Ireland this becomes ‘the best interests of the child’. An interesting difference in words, but probably of no significance.
Moving on to the checklist, I shall go through each factor in the Irish list, in turn:
(a) the benefit to the child of having a meaningful relationship with each of his or her parents and with the other relatives and persons who are involved in the child’s upbringing and, except where such contact is not in the child’s best interests, of having sufficient contact with them to maintain such relationships
This, I suppose, is the equivalent to our ‘shared parenting presumption’ (which is not actually on our checklist, but in the same section of the Children Act), i.e. the presumption, unless the contrary is shown, that involvement of each parent in the life of the child concerned will further the child’s welfare. Interestingly, the Irish version is wider, referring not just to the parents but also to other relatives and persons who are involved in the child’s upbringing.
(b) the views of the child concerned that are ascertainable
This is similar to our ‘ascertainable wishes and feelings of the child concerned’, although in our checklist the court is specifically required to take into account the child’s age and understanding.
(c) the physical, psychological and emotional needs of the child concerned, taking into consideration the child’s age and stage of development and the likely effect on him or her of any change of circumstances
This is a combination, with similar wording, of two of the factors on our checklist: the child’s ‘physical, emotional and educational needs’, and ‘the likely effect on him of any change in his circumstances’, although in the case of the former the Irish courts are specifically required to take into account the child’s age and stage of development.
(d) the history of the child’s upbringing and care, including the nature of the relationship between the child and each of his or her parents and the other relatives and persons referred to in paragraph (a), and the desirability of preserving and strengthening such relationships
This one is particularly interesting, and doesn’t have an equivalent in our checklist, although these are certainly matters to which our courts would have regard.
(e) the child’s religious, spiritual, cultural and linguistic upbringing and needs
These are not matters specified in our checklist, which only says that the court must have regard to the child’s ‘background’. I suppose this is to be expected in a country that is perhaps ‘more religious’ than we are, and also that has a more significant linguistic divide.
(f) the child’s social, intellectual and educational upbringing and needs
Again, this does not have a direct equivalent in our checklist, although education is mentioned in our list, as referred to above.
(g) the child’s age and any special characteristics
Very similar to our ‘age, sex, background and any characteristics … which the court considers relevant’. Note that the Irish list makes no mention of the child’s sex.
(h) any harm which the child has suffered or is at risk of suffering, including harm as a result of household violence, and the protection of the child’s safety and psychological well-being
The equivalent of our ‘any harm which he has suffered or is at risk of suffering’, but specifically mentioning household violence and protection of the child. Obviously, domestic violence is a major factor that our courts consider, but it is not actually referred to in our checklist.
(i) where applicable, proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child, having regard to the desirability of the parents or guardians of the child agreeing to such proposals and co-operating with each other in relation to them
This is another interesting one, with no equivalent in our checklist, although its omission is unlikely to make any difference, as our courts will obviously consider any proposals put forward.
(j) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and to maintain and foster relationships between the child and his or her relatives
Again, this has no equivalent in our checklist. It is, I think, of particular interest, recognising the benefit to the child of close and continuing relationships with parents and relatives.
(k) the capacity of each person in respect of whom an application is made:
(i) to care for and meet the needs of the child,
(ii) to communicate and co-operate on issues relating to the child, and
(iii) to exercise the relevant powers, responsibilities and entitlements to which the application relates.
This is the equivalent of our ‘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 [the child’s] needs’, although once more the Irish version goes into greater detail. The reference to the capacity to communicate and cooperate, so important to the child, is of particular interest.
My overall feeling is that I slightly prefer the Irish checklist. It is more comprehensive and feels more ‘modern’. That, however, may not be surprising, as the Irish checklist was enacted only last year (by amendment of the 1964 Act in which it is contained), whereas ours is now more than a quarter of a century old.
If you want to see our welfare checklist in full, you can find it in section 1(3) of the Children Act 1989, here.