The Welfare Test

Front 1

Where can the welfare test be found?

Back 1

Children (Scotland) Act 1995 s11(7)

Front 2

What quote from J v C[1970] A.C. 668, Lord McDermott (at 710-11) best captures the welfare principle?

Back 2

“a processwhereby, when all the relevant facts... are taken into account andweighed, the course to be followed will be that which is most in the interestsof the child's welfare”

Front 3

What are some factors courts are likely to take into account when using the welfare principle?

Back 3

1. The status quo
2. Violent or addictive behaviour
3. Ability to supply the child with the necessities of life
4. Compliance with court orders
5. Childs age and sex ("doctrine of tender years")

Front 4

Breingan v Jamieson, 1993 SLT 186

Back 4

The welfare test was used to decide that it was better to keep a child with his aunt who he had been living with for four years since his mother died rather than his natural father who later wanted him to live with him.

Front 5

McKechnie v McKechnie 1990 (Sh Ct) SCLR notes 153

Back 5

Here the father was a Jehovah’s Witness wanted to get a court order for residence. Because he would not have allowed the child to get a blood transfusion down the line he was not given residence as this could be a threat to the child’s welfare.

Front 6

Brixey v Lynas (No.1) 1997 SC (HL) 1

Back 6

Mother and father split and both wanted custody of a young child. The judge put forth the opinion that when very young a child benefits more from being around the mother than father.

Front 7

Early v Early 1990 SLT 221

Back 7

A lesbian mother lost custody of her children because the court took the view that a lesbian couple was not a ‘family unit’. This part of the precedent is no longer followed, considered an outdated view. However, case is still important because it set the precedent in these disputes that siblings should not be split up.

Front 8

What is the non-intervention principle?

Back 8

This is the presumption that the courts have that if they are not convinced any order is needed they will not issue one.

Front 9

What does Expropriomotu mean in relation to s11 orders?

Back 9

This is the principle that even if no one asks for an order to be issued the court can issue one if it feels this would be in the best interests of the child.

Front 10

Russell v Russell 1991 SCLR notes 429

Back 10

Puts in authority that if a parent wants contact with a child then the burden of proof is on them to show this is in the child's best interests.

Front 11

White v White 2001 SLT 485

Back 11

Says that the non-intervention principle is to put into practice parliaments views that where possible, court orders should not be nessecary. Also says that in most situations the child will benefit from contact with both natural parents.

Front 12

Where in statute does it say that part of the welfare test is to give the child the opportunity to express a view and to take that view into account?

Back 12

Children (Scotland) Act 1995 s11(7)(b)

Front 13

How old do you have to be to have your view taken into account under the welfare test?

Back 13

The presumption is the age of 12 but you could be younger than this and prove your maturity and have your view taken or older than this and be shown to not be mature enough and not have your view taken.

Front 14

Shields v Shields 2002 SLT579

Back 14

Puts into authority that a childs view should be taken multiple times over the course of a long court case.

Front 15

City of Edinburgh Council v H, 2001 SLT (Sh Ct) 51

Back 15

10 and a half year old boy in care, mother was a disasterand would never bother to see him. The social workers felt she should lose herright of contact. The child was determined to continue seeing his mum. Thecourt went with the child’s view and allowed the mother to keep her right ofcontact.

Front 16

C v McM [2005] 75 Fam LB 6

Back 16

If it is considered to be detrimental to a child to take their views (they become distressed when this view is attempted to be taken) then this will not be done as it goes against the welfare of the child.

Front 17

S v S [2012] CSIH 17

Back 17

6 year old child, mum wanted to move to America, was successfulin receiving a specific issue order on this point. The father appealed becausethe child's view had not been taken but it was held 6 was too young regardlessof maturity.

Front 18

F v F [2013] EWHC2683

Back 18

High court judgeordered that a 15 year old girl and her 11 year old sisters be vaccinatedagainst MMR. The girls did not want it and neither did the parents due to asupposed link to autism that was later discredited. The father changed his mindafter an outbreak and later wanted them vaccinated so took them to court. Thecourt appointed guardian warned that their mother had influenced them. Against the girl’s wishes, they were vaccinated as the court found that they had notbeen fully informed and could not make a rational decision.