Fundamental principles

Private law applications in relation to children are predominantly governed by the Children Act 1989 (ChA 1989), though they also overlap with the Human Rights Act 1998. They often relate to applications made under ChA 1989, s 8 for child arrangements orders (CAOs), specific issue and prohibited steps orders, and applications made for parental responsibility.

Paramountcy of the child's welfare

ChA 1989 provides that when determining any question with respect to:

  1. the upbringing of a child, or

  2. the administration of a child's property or the application of any income arising from it,

the child's welfare shall be the court's paramount consideration.

Upbringing includes the care of the child but not their maintenance.

See Practice Note: Private children—paramountcy of the child's welfare.

Welfare of the child—presumption of continued parental involvement

Pursuant to ChA 1989, s 1(2A), where the court is considering one of the following applications, it must, in relation to each parent, presume (unless the contrary is shown) that involvement of that parent in the life of the child concerned will further that child's welfare:

  1. a contested application

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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