Bringing Child Welfare to the Fore: Why the Financial Remedies Reform Consultation Should Unify the Section 25 Checklist

The government’s proposal for financial remedies reform offers a generational opportunity to correct a quiet but persistent imbalance in our family courts. For too long, the statutory directive that the ‘welfare of the child’ must be the court’s first consideration has been underdeveloped, under-argued and often overlooked.

In practice, courts may make a passing reference to the ‘welfare of the children’ before swiftly going through the s 25(2) checklist – for the adults – stage by stage. How often, in contrast, is the s 25(3) children’s checklist, which follows it, subjected to the same rigorous analysis?

We know that the consultation has proposed three tiers. It surely cannot be the case that Tier 1, focusing on the welfare of the child, is just a preliminary gateway that receives limited attention before the court turns to the detailed analysis of the factors contained within Tiers 2 and 3, concerning the adults’ needs.

If we are serious about reform that focuses first and foremost on the needs of the children, we must also change the statutory architecture.

On the subject of statutory architecture, it remains highly uncertain how any new tiers will be knitted into the statutory s 25 checklist, which appears set to survive in a likely expanded list of factors.

Our proposal: a unified, child-first statutory checklist

To bridge the gap of focus between the child and the adults, we propose an adjustment of s 25, so that s 25(2) and s 25(3) are merged and reassembled.

So rather than maintaining separate adult and child checklists, which risks making children’s factors secondary in practice, the statutory framework should integrate them into a single unified checklist.

Of course, if there are no relevant children, the first few factors would simply be bypassed, just as Tier 1 would be ignored in cases without relevant children under the tiering proposals.

A mock-up of how this tentative drafting might look illustrates the shift:

‘Section 25’

1. It shall be the duty of the court in deciding whether to exercise its powers under sections [ ] above and, if so, in what manner, to have regard to all the circumstances of the case, with the paramount consideration being given to subsections (a) – (…) concerning the welfare while a minor of any child of the family who has not attained the age of eighteen.

2. As regards the exercise of the powers of the court under section […] the court shall in particular have regard to the following matters —
    
   (a) The physical, educational and emotional needs of the children;
    
   (b) The likely effect on the children on any change in circumstances including any changes to their educational status quo;
    
   (c) Any special needs or characteristics of any of the children which the court might consider relevant.
    
   … and on to…..
    
   (d) the income, earning capacity … [etc of the adults as s25(2) now plus additions]

From ‘first’ to ‘paramount’: necessary shift or a step too far?

The eagle-eyed among you will see we have suggested that the welfare of the child should be the paramount rather than the ‘first consideration’.

In the landscape of family law, this language deliberately mirrors s 1 of the Children Act 1989, where the child's welfare is the court's paramount consideration. For the current financial remedies law, ‘first consideration’ means that it is a timing priority that can be outweighed by the other factors that follow.

One wonders what other factors could or should genuinely outweigh those of the children. Clearly, this is always a case-by-case analysis, driven by the availability of assets, adult needs and aligned with the standard of living whilst the family was together.

Having the children’s needs as paramount might have to be rebuttable, if there were a scenario where a parent’s needs had to supersede them. Even then, it is difficult to see how focusing on the needs of a very ill parent, for example, would not also be of paramount concern to their child.

The advantage of the word ‘paramount’ is that it would force a cultural shift in outlook. It would legally prevent the children's needs from being treated as a secondary box-ticking exercise. It would also align financial remedy proceedings with the overarching ethos of modern family justice: that children come first. It would thus be a step towards aligning the culture of children and finance jurisprudence.

Conclusion

Reform can do more than just reorganise adult-focused factors for married or unmarried adults. It can ensure that children’s welfare is embedded at the heart of the statutory exercise.

The two proposals we make would make it harder for children’s needs to be acknowledged in principle but sidelined in practice.