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'The welfare principle is unhelpful. It is indeterminate. What parents, children and family law practitioners need are clear rules in order to predict the outcomes of problems and conflicts'

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Introduction

'The welfare principle is unhelpful. It is indeterminate. What parents, children and family law practitioners need are clear rules in order to predict the outcomes of problems and conflicts' It is argued by many academics that the welfare principle is the fundamental aspect of family law regarding the protection of children. The primary reason for having such a system in place is to ensure that the rights and feeling of a child are never over looked, before and during litigation. In order to decide whether this principle is 'indeterminate' it is essential to evaluate the manner in which it is practically applied. The recognition of children's rights was increased after the enactment of the Children Act 1989. The central reason behind the new act was to modernise the law relating to children in order to improve the judicial system when cases regarding children were being heard. The act does not give a clear definition of what the term 'welfare' actually means. This can be seen as an advantage as by interpreting the act as whole, the judge will be able to infer the central meaning of welfare. The central principle is clearly stated under s.1(1) ...read more.

Middle

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. ...read more.

Conclusion

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. ...read more.

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