‘…A process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood’.
This case can be directly compared with Re M. A Zulu boy came to live in England but his biological parents wanted him to return to South Africa. The boy made it clear that he was happy, and wanted to continue living in England. However, the court decided it was in the interest of the child to return to his biological parents. These two cases give a very broad understanding of the welfare principle. It is clear that the judiciary can not simply follow precedent when deciding the outcome of a particular case. Each case must be examined and an outcome must be reached on its own merits. Indeterminacy, the lack of any precise meaning to the notion of welfare has allowed judges to use it to justify their own subjective decisions. By having a set rules to replace the welfare systems judges would loose their discretion when passing judgement in particular cases involving children.
In order for the judge to exactly determine what the term ‘welfare’ actually means s.1(3) is applied. This does not provide an exact meaning of the term but outlines a list of factors which the judge must consider. One of the most important factors a judge must consider is the feelings of a child. The feelings of the child are put forward by experts such as social workers who have worked with the child over a number of months. The expertise of a social worker allows them to interact with a child and then portray their views to the courts. Therefore the research done into the development of the child by medical and social experts aids the judge in putting the child’s needs into context. Currently the judiciary is highly dependent on the work done by CAFCASS workers when interpreting a case. The ‘welfare principle’ allows this vital research to be undertaken. It gives the opportunity for others to gain an insight into the mind of the child and express those vital thoughts of the child. If fixed rules were put into place then this would simply create a standard which all experts would be aiming to achieve. Without this fixed standard, the expert is able to work on every individual in a unique manner to that child. Therefore, this level of discretion is also vital for the experts to ascertain the clear feelings of the child.
Different proposals have been made to improve the current situation. The Law Commission rejected the use of rules or guidelines. It was difficult to frame guidelines that did not undermine the paramountcy rule. The only guidelines considered justified by current knowledge would not assist in typical disputes where the child was attached to both parents who could provide equally. The Law commission favoured listing those matters which the court should take into consideration without allocating weight to any of them This has been done by including a checklist in the Children Act 1989, s. 1(3).
The checklist is mandatory; it is not a list of ‘checks’ as such but a list of things to be regarded. There are also problems with the checklist, such as overlapping and conflict between elements. The first point takes into consideration the feelings and wishes of the child. The courts however are not limited to listening to the ‘Gillick competent’ child. In M v M (Transfer of Custody), the Court of Appeal said that the trial judge was wrong to ignore the strong views of a 12 year old girl. However in Re P (Minors: Wardship) Lady Butler-Sloss stated, the wishes of a child would be taken into account but they did not bind the courts. The next condition takes into account the child’s physical, emotional and educational needs.
In the New Zealand case of Walker v Walker and Hanson it was said that this included material welfare and the provision of a pleasant home.
The next provision is the likely effect on the child of any change in circumstances. In D v M (custody Appeal) the Court of Appeal held that continuity of care was important to a child’s security, particularly in the early years. The importance of status quo was emphasised by the House of Lords in J v C. The next consideration is the child’s age, sex, background and any other relevant characteristics. There is no longer the presumption that one parent be preferred to another on the grounds of a child’s particular age: Re S (Minor: Custody). Section 22 (5) requires local authorities to take into account ‘religious persuasion, racial origin and cultural and linguistic background’ when considering placement for a child.
Another issue for the court to consider is any harm, which the child has suffered or is at risk of suffering. If the harm is, or is likely to be significant, this may trigger the involvement of the local authority. The next issue on the checklist relates to how capable the child’s parents, and any other relevant person, may be of meeting his needs. The most obvious ‘other relevant person’ is a stepparent with whom the child resides. The important factor for the court to consider is the relationship between them. The final consideration is the range of powers available to the court under the Act. This will include the power to order welfare reports or, if the child has to attend court, the ability to relax the rules of evidence.
The implementation of the Human Rights Act 1998 demands consideration of whether the court’s approach to disputes about relationships with children complies with the E.C.H.R. The welfare principle has to be applied as well as interpreted in agreement with the convention. The right to respect for family life imposes obligations on the state. This includes providing a framework for adjudication and enforcement for disputes between individuals. The state can only interfere with private and family to life to the extent, which Article 8(2) allows. It has been stated that the welfare principle and Article 8 are not compatible; this is because more evidence is needed to show to show that interference with a right is necessary and the judgements required are different. It has also been suggested that there is a danger that the welfare principle will be diluted due to parent’s claims to their rights. This argument is bought forward in a similar context by Bainham. The European Convention on Human Rights does not explicitly talk about the rights of children. The main attention is given to adults. However, it is now widely accepted that children receive the same protection under the Convention as adults. Bainham has complained of the ‘pitifully inadequate response thus far by the European Institutions to the equally independent rights of children under the Convention’. The underlying reason for his argument is the fact that children’s rights are sometimes ignored in court in cases brought by parents regarding children.
One of the central aims of the welfare principle is to place the child in safe hands during contact disputes. Following a recent study Bailey-Harris by it is possible to see that courts are now emphasising that parties resolve their own disputes amicably. However, in many situations a deadlock is reached and therefore the emphasis is put on the court to apply s.8 Children Act 1989. A recent survey in the Times Newspaper stated that approximately 80,000 parents begin proceedings every year under s.8 of the act.
There are also a number of criticisms of the welfare principle. It is argued by King and Piper that the courts do not consider all relevant issued when deciding the welfare of this child. They argue that there is too much reliance on experts such as social workers and factors such as ‘quality of public housing’ and ‘pollution’ are ignored.
Another argument brought forward is by Mnookin who states that the welfare principles increase the levels of uncertainty within the legal system. He argues that there are so many factors which must be considered to assess the welfare of a child, and this must therefore lead to uncertainty. He also goes on to argue that in some situations it would be impossible to distinguish under which parent the child should live. This would therefore cause more uncertainty in the system. Reece puts forward an argument suggesting that this uncertainty created by the welfare principle will prevent the real reason for the courts decision to be aired and it will therefore remain hidden.
In order to say that the welfare principle is unhelpful, an alternative system must be brought forward to replace it. It is possible to argue that it is perfectly helpful to parents, children and family law practitioners because without this system in place a number of cases may not have been correctly decided. It is clear from Mnookin’ article ‘Bargaining in the Shadow of the Law’ that family law cases are persons orientated, in that the adults and children must be evaluated and not the events. It is possible to say to have strict principals in place will cause a flaw in the system. This is because family law is based on the feelings and rights of individuals. If these factors are not adhered to then it will lead to rigidity within the system. The current system allows judges to use their discretion when passing judgement. However, this discretion is not unlimited as shown in the case of Re W. When judges depart from the evidence of welfare officers then they must give good reasons for doing so. This helps in creating transparency in the decision and the system. It is possible to argue the welfare system is not indeterminate, it allows judges to follow a clear and precise structure of the law by means of the Children Act in order to establish an isolated decision based directly on the case.
Bibliography
Family Law Jonathan Herring
Lecture Notes Professor O’Donavan
Seminar Notes Ayesha Vardag
