Children and Family Relationships Act 2015
Insertion of Part V in Act of 1964
63. The Act of 1964 is amended by the insertion of the following after Part IV:
Best interests of the Child
Determination by court of best interests of child
31. (1) In determining for the purposes of this Act what is in the best interests of a child, the court shall have regard to all of the factors or circumstances that it regards as relevant to the child concerned and his or her family.
(2) The factors and circumstances referred to in subsection (1) include:
(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;
(b) the views of the child concerned that are ascertainable (whether in accordance with section 32 or otherwise);
(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;
(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;
(e) the child’s religious, spiritual, cultural and linguistic upbringing and needs;
(f) the child’s social, intellectual and educational upbringing and needs;
(g) the child’s age and any special characteristics;
(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;
(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;
(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;
(k) the capacity of each person in respect of whom an application is made under this Act—
(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.
(3) For the purposes of subsection (2)(h), the court shall have regard to household violence that has occurred or is likely to occur in the household of the child, or a household in which the child has been or is likely to be present, including the impact or likely impact of such violence on:
(a) the safety of the child and other members of the household concerned;
(b) the child’s personal well-being, including the child’s psychological and emotional well-being;
(c) the victim of such violence;
(d) the capacity of the perpetrator of the violence to properly care for the child and the risk, or likely risk, that the perpetrator poses to the child.
(4) For the purposes of this section, a parent’s conduct may be considered to the extent that it is relevant to the child’s welfare and best interests only.
(5) In any proceedings to which section 3(1)(a) applies, the court shall have regard to the general principle that unreasonable delay in determining the proceedings may be contrary to the best interests of the child.
(6) In obtaining the ascertainable views of a child for the purposes of subsection (2)(b), the court—
(a) shall facilitate the free expression by the child of those views and, in particular, shall endeavour to ensure that any views so expressed by the child are not expressed as a result of undue influence, and
(b) may make an order under section 32.
(7) In this section ‘household violence’ includes behaviour by a parent or guardian or a household member causing or attempting to cause physical harm to the child or another child, parent or household member, and includes sexual abuse or causing a child or a parent or other household member to fear for his or her safety or that of another household member.
Power of court to make certain orders
32. (1) In proceedings to which section 3(1)(a) applies, the court may, by order, do either or both of the following:
(a) give such directions as it thinks proper for the purpose of procuring from an expert a report in writing on any question affecting the welfare of the child; or
(b) appoint an expert to determine and convey the child’s views.
(2) An order under subsection (1) may be made by the court of its own motion or on application to it in that behalf by a party to the proceedings and, in deciding whether to make an order, the court shall have regard to any views expressed to it in relation to the matter by or on behalf of a party to the proceedings concerned or any other person to whom they relate.
(3) Without prejudice to the generality of subsection (1), the court, in deciding whether to make an order under that subsection, shall, in particular, have regard to the following:
(a) the age and maturity of the child;
(b) the nature of the issues in dispute in the proceedings;
(c) any previous report under subsection (1)(a) on a question affecting the welfare of the child;
(d) the best interests of the child;
(e) whether the making of the order will assist the expression by the child of his or her views in the proceedings;
(f) the views expressed by a person referred to in subsection (2).
(4) A copy of a report under subsection (1)(a) may be provided in evidence in the proceedings and shall be given to—
(a) the parties to the proceedings concerned, and
(b) subject to subsection (5), if he or she is not a party to the proceedings, to the child concerned.
(5) In determining whether a report obtained under subsection (1)(a) should be furnished to the child to whom it relates, the court shall have regard to the following:
(a) the age and maturity of the child and the capacity of the child to understand the report;
(b) the impact on the child of reading the report and the effect it may have on his or her relationship with his or her parents or guardians;
(c) the best interests of the child;
(d) whether the best interests of the child would be better served by the furnishing of the report to the parent, guardian, next friend of the child or an expert appointed under subsection (1)(b), rather than to the child himself or herself.
(6) An expert appointed under subsection (1)(b) shall—
(a) ascertain the maturity of the child,
(b) where requested by the court, ascertain whether or not the child is capable of forming his or her views on the matters that are the subject of the proceedings, and report to the court accordingly,
(c) where paragraph (b) does not apply, or where paragraph (b) applies and the expert ascertains that the child is capable of forming his or her own views on the matters that are the subject of the proceedings—
(i) ascertain the views of the child either generally or on any specific questions on which the court may seek the child’s views, and
(ii) furnish to the court a report, which shall put before the court any views expressed by the child in relation to the matters to which the proceedings relate.
(7) The court or a party to proceedings to which this section applies may call as a witness in the proceedings an expert appointed under subsection (1).
(8) Where, in proceedings referred to in subsection (1), the court has made an order under paragraph (a) or (b) of subsection (1), nothing in this section shall prevent the court from—
(a) making a further order under either or both of those paragraphs, or
(b) in making such a further order, appointing the same or a different expert to perform the function concerned.
(9) The fees and expenses of an expert appointed under subsection (1) shall be paid by such parties to the proceedings concerned and in such proportions, or by such party to the proceedings, as the court may determine.
(10) The Minister may, in consultation with the Minister for Children and Youth Affairs, by regulation specify—
(a) the qualifications and experience of an expert appointed under this section, and
(b) the fees and allowable expenses that may be charged by such an expert.
(11) Without prejudice to the generality of subsection (10), regulations under that subsection may provide for:
(a) the qualifications, and the minimum level of professional experience, to be held by an expert,
(b) the minimum standards that shall apply to the performance by an expert of his or her functions under this section, and
(c) such other matters as the Minister considers necessary to ensure that experts are capable of performing their functions under this section.”.