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Discuss the Children Act's Welfare Principle. Section 1 of the Children Act 1989 added substantial weight upon child welfare through the statement the childs welfare shall be the courts paramount consideration. [1] This prin

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Section 1 of the Children Act 1989 added substantial weight upon child welfare through the statement “the child’s welfare shall be the court’s paramount consideration.”[1] This principle is applicable where the upbringing of a child and the administration of the child’s property are in question. Lord Macdermott gave the following analysis of the welfare principle: “…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.”[2] Many interpretations can be made of the welfare principle, and at this moment in time, judges have a substantial amount of discretion in the area, which is arguably its main strength. However, because of its “extreme indeterminacy”,[3]there have been countless criticisms, substantial debate, and as John Eeekelaar states, “it has been subjected to critical scrutiny.”[4] The main criticisms of the Children Act’s welfare principle will be thoroughly discussed in this paper.

Since the implementation of the welfare principle in the Children Act, criticisms immediately became apparent. The DFES and DCA conducted the “Care Proceedings System Review”, [5]which concluded that for the courts to make correct assessments of a child’s welfare, this would undoubtedly lead to higher legal costs and longer proceedings. Helen Reece comments that the individuals who are responsible to make decisions on welfare have subjective views, as there is a “lack of consensus on what children’s welfare demands, and of adequate research evidence about what ensures healthy psychological development.”[6] This inevitably leads to a split in thoughts about what constitutes effective child welfare. The old-fashioned thought process favours a whole family unit, consisting of both parents and the children. Modern views however recognise that a child can develop just as well in a single parent relationship. The lack of comprehensive guidelines within the principle enables courts to use it how they please. S. Parker agrees with this point, concluding: “Without further rules or guidelines, the use of the welfare principle simply creates unexaminable discretion.”[7] Because of this lack of guidance, it is more likely that couples will undertake legal proceedings, rather than negotiate with each other, leading to an increase in cases. Private ordering has an important stance under the welfare principle, because existing arrangements have a substantial influence on court orders. This can be seen in the case of Re V (Residence Order: Finance)[8] where the judge confirmed the existing arrangement, and dismissed the mothers appeal.

Two attacks can be made against the welfare principle from different directions. These two criticisms have appropriately been labelled by John Eeekelaar as the “lack of transparency objection”[9]and the “lack of fairness objection”[10] Firstly, the “lack of transparencyobjection[11] means that the interests of others, for example the parents, may overshadow the best interests of the child in certain situations. This argument is specifically applicable in the case of Re M.[12] Here, a Zulu boy was sent against his will from England to live with his parents in South Africa. The boy did not settle, and was returned to England. At the time it is highly likely that the practitioners thought it was in the child’s best interests to be sent home. However, it is clear that they couldn’t see beyond the old fashioned thought process that children are better off with both their parents, and so, the boy’s feelings were not taken into account and his welfare didn’t prevail.

Secondly, the opposite attack, the “lack of fairness objection”.[13] This objection centres on the belief that although the child’s welfare is the paramount consideration, interests of other individuals that are affected should have an equal footing. Two respectable authors: Helen Reece and Jonathan Herring, have opposing views on the “lack of fairness objection”.[14] Helen Reece states: “The paramountcy principle must be abandoned, and replaced with a framework which recognises that the child is merely one participant in a process in which the interests of all the participants count.”[15]This statement is a clear indication that the welfare principle is inadequate, as it only recognises the child and fails to provide sufficiently for the needs and views of others.  Helen Reece feels that the rights of adults are not given enough recognition by the welfare principle, as seen in numerous cases where homosexuals have been denied residence. In her view, the welfare principle should be completely abandoned. This view can be contrasted with that of Jonathan Herring.

Herring also disagrees with the welfare principle, however unlike Reece, he does not want it to be abandoned, rather “it should be reconceptualised by emphasising that recognition of the interests of others is part of a child’s welfare.”[16] This is a democratic standpoint, which I disagree with as it includes the interests of others within the welfare principle. This would render the principle that “the child’s welfare shall be the court’s paramount consideration”[17]useless. Therefore, I agree with Helen Reece, that the principle should be abandoned and new legislation which balances the rights of both equally. The arguments put forward by Reece and Herring are logical and acknowledged criticisms of the welfare principle. However, the question of how to balance the interests of all the individuals has received further debate, particularly with the compatibility of the welfare principle and the Human Rights Act 1998.

When the Human Rights Act 1998 was implemented, concerns were raised about whether the welfare principle complied with the ECHR. The welfare principle must be operable under the Convention, if this is not possible, the High Court would make a declaration of incompatibility.[18] This indicates that since the Human Rights Act was introduced, the flexibility and scope of the welfare principle has been shortened, as the “right to respect for private and family life”[19]has to be adhered to. Under this article, the courts are advised to “examine the competing interests of each party rather than assume that the child’s welfare interest trumps all others.”[20] Again this is a clear sign that the welfare principle is not able to work effectively under the ECHR.  

The case of “Re KD (A Minor) (Ward: Termination of Access)”[21]laid down the question of whether the welfare principle is compatible with the Convention to the House of Lords. Lord Oliver and Lord Templeman came to the same conclusion, that the welfare principle was not inconsistent with the Convention: “In my opinion there is no inconsistency of principle or application between the English rule and the Convention rule.”[22]Payne v Payne[23]echoed this view, the father in the case argued that the relocation of the child was against the child’s best interests, and that his rights under article 8 were being infringed. The Court refused this appeal because of the Human Rights Act and the welfare principle, again showing no signs of incompatibility. In Re B (Adoption Natural Parent), Lord Nicholls commented that article 8 does not interfere with the welfare principle, instead it works compatibly with the welfare principle and comes to the same conclusion: “Although the phraseology is different, the criteria to be applied in deciding whether an adoption order is justified under Article 8(2) lead to the same result as the conventional tests applied by English Law.”[24] The European Court of Human Rights has accepted that the child’s welfare can impose restrictions on others, and that this is compatible under article 8(2), “provided that decisions are proportionate.”[25] However, the rights to family life under article 8 must be abided by, and as seen in Elsholz v Germany[26], decisions should undergo a professional assessment to ensure that the child’s welfare is factual.

Contrary to this, commentators are still convinced that the welfare principle remains incompatible under the ECHR. The welfare principle originally stemmed from the Guardianship of Infants Act 1925, where it was stated: “[the court] shall regard the welfare of the infant as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody ... is superior to that of the mother, or the claim of the mother is superior to that of the father.”[27] That is the clearest example that the welfare of a child should solely be the paramount consideration, and not balanced with other individuals interests. Therefore, if the welfare principle was to take this literal meaning under the ECHR, it would not comply.

Emily Jackson heavily criticises the use of the welfare principle under the Human Fertilisation and Embryology Act 1990[28], arguing: “Extending the ‘welfare principle’ to decisions taken prior to a child’s conception is shown to be unjust, meaningless and inconsistent with existing legal principle.” Jackson gives three main arguments as to why the welfare principle shouldn’t be drawn upon when considering fertility treatment. Firstly, couples who are fertile do not have to prove their “parental adequacy[29]when they wish to conceive, therefore rendering the welfare principle unfair. Secondly, she argues that the individuals responsible for making the judgement are not educated enough to make an intelligent assessment of the child’s welfare. Finally, the fact that in all other areas of law, judgements on existence is preferable, therefore the legislation is incoherent. Concluding the above points, Jackson states “In sum, I would argue that the welfare of children who do not yet exist is, in simple and crude terms, none of the law’s business.”[30] This logical report by Emily Jackson clearly illustrates that the welfare principle does not have a place in fertility treatment.

There are many circumstances where the welfare principle does not apply, because the rights of adults are considered more significant. Herring composed a list of several of such circumstances: “divorce; domestic violence; financial provision on divorce; secure accommodation orders; disclosure of evidence; adoption; medical experiments; blood tests.”[31]In these contexts, the interests of adults prevail against the interests of children, yet the interests of children are still considered in making such decisions. If this system works effectively in the contexts listed by Herring, then why is there a need for the welfare principle in the first place? The rights of children would still be considered before a judgement is made, but instead they would be balanced with the interests of others, as discussed earlier and agreeing with Helen Reece.

It is evident from the discussions above that many of the leading academics are not satisfied with the welfare principle, I have already briefly mentioned two of which, Herring and Reece. I will now look closer at these arguments and their suggested alternatives to the welfare principle, firstly by Bainham, secondly Herring, and finally Eeekelaar.

In “'Honour Thy Father and Thy Mother: Children's Rights and Children's Duties”, [32]Bainham “rejects the predominance of children’s interests within the welfarist paradigm.”[33] The balancing of rights between the individuals concerned is central to his belief, rejecting the principle that the child should have paramount consideration. Bainham suggests introducing a system which labels the children’s and parents interests as primary and secondary. Under this labelling, a parent’s secondary interest would have to take into account a child’s primary interest, and vice versa. A third label is also suggested, the “collective family interest”.[34] Bainham believes that all of the interests should be balanced, and the above suggested balancing system is the best method to do so.

I have already briefly discussed Herring’s ideology, that the welfare principle should not be demolished, but instead built upon using the child’s welfare as a starting point. Herring rejects Bainham’s system, as it purely based on conflict, whereas his system centres on “union and mutual supportiveness”.[35] Herring believes that the law should focus on developing the relationship between the parents and the child. Firstly, the child should grow up under the parent’s authority and instinct, learning from experiences. Secondly, the child’s welfare should be directed to sustaining or improving the relationship with other family members, in a fair and just scenario. Herring advocates welfare which is relationship based, “promoting an effective and satisfactory parent-child relationship.”[36]

Eeekelaar believes that total abandonment of the welfare principle is the best way forward. The way in which the principle currently stands does not give actual consideration to the child’s interests or the interests of other individuals. He agrees with Bainham’s system, but advances upon it. Eeekelaar argues that the child’s interests should not be paramount, but privileged, and that the child should not be under a substantial amount of detriment, but an appropriate amount, according to the cases’ circumstances. Here is the example given of the preferred situation: “a solution under which the child’s well-being was diminished, but which damaged the parent’s interests to a far lesser degree.[37] Each of these three critics again reinforces the argument that the welfare principle is not sufficient.

Despite the numerous criticisms of the welfare principle, there still remains support. The welfare principle has an excellent moral attitude, by putting the interests of children before the interests of others. After all, children are the most vulnerable, and are the most affected by family law disputes. King argues that the children “must be protected from harm and given every opportunity to become healthy and well adjusted adults.”[38] If the welfare principle was to change, or even abolished, then children’s welfare could be put at a significant risk. In “Beyond”, [39]Goldstein, Freud and Solnit agree with the principle, however, they argue that a slight change should be made to the wording, namely: “the least detrimental alternative”. [40]This ensures that the individuals who make the decisions can only do so to their “humble best”.[41]

I have thoroughly discussed in this paper the main arguments criticising the welfare principle, and have also touched upon suggested solutions by respected authors and academics. The welfare principle does not have any guidelines, giving it substantial discretion. The fact that assessments are needed in order to determine the welfare of the child leads to greater costs, and lengthy proceedings. The judges can be subjective in their thoughts, creating greater uncertainty. Eeekelaar has given two objections to the principle, “lack of fairness” and “lack of transparency”. Each of these objections raises concerns regarding interpretation, and how the interests of others are balanced. Both Reece and Herring want to see more legislation regarding the interests of others, the former arguing abandonment of the principle and the latter arguing reconceptualising the principle. When the Human Rights Act was introduced, there were potent concerns regarding the compatibility of the welfare principle with the act. Although the Judiciary declared in Re KD[42] that there were no compatibility issues, commentators are still not convinced because of the wording regarding child welfare in the Guardianship of Infants Act. Another unique criticism is Emily Jackson’s argument, that there is no place for the welfare principle in fertility treatment.[43] Finally, there are many circumstances where the welfare principle does not take precedence, yet children’s interests are still adequately served, therefore why can this not be the case for all disputes? Taking into account that the welfare principle has an excellent moral basis, I believe that the disadvantages far outweigh this fact, and in my eyes, abandonment is the best option. New legislation should then be implemented which balance the interests of all equally. Whether it is decided in the future to follow one of the academic’s[44] suggestions, totally abandon the principle or improve the principle, the importance of child welfare and balancing that with other individual’s interests must always be the priority.

Words: 2,590

Bibliography

Books

‘Principles of Family Law’ Eighth Edition – By Masson, Bailey-Harris, Probert

‘Children’s Rights and the Developing Law’ – By Jane Fortin

Statutes

Human Rights Act 1998

Children Act 1989

Human Fertilisation and Embryology Act 1990

Guardianship of Infants Act 1995

European Convention on Human Rights

Journals

J. Eekelaar, 'Beyond the welfare principle' (2002) CFLQ 237

H. Reece 'The Paramountcy Principle: Consensus or Construct?' (1996) Current Legal Problems 267

A. Bainham, 'Can we protect children and protect their rights?' (2002) Fam Law 279 at 288

H. Fenwick 'Clashing Rights, the welfare of the child and the Human Rights Act' (2004) 67(6) MLR 889–927

S. Parker, 'Rights and Utility in Anglo Australian Family Law' (1992) 55 MLR 311.

J. Herring 'The Human Rights Act and the Welfare Principle in family law—conflicting or complementary?' (1999) 11(3) CFLQ 223–35.

J. Eekelaar ‘Beyond the welfare principle’ [2002] CFLQ 237

Jackson, Emily (2002) Conception and the irrelevance of the welfare principle. Modern law review, 65 (2). pp. 176-203

Choudhry and Fenwick ‘Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act’ OJLS 2005 25 (453)


[1] Section 1 of the Children Act 1989

[2] Lord Macdermott - J v C [1970] AC 668

[3] Inter alia: R Mnookin (1975); M Fineman (1988); S Parker (1994); H Reece (1996); J Herring (1999 a); J Eeekelaar (2002)

[4] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[5] DFES AND DCA, Care Proceedings System Review (2006)

[6] H. Reece, “The Paramountcy principle consensus or construct?” [1996] C.L.P

[7] S. Parker, “The Best Interests”

[8] [1995] 2. F.L.R 612, CA

[9] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[10] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[11] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[12] Re M (Child’s Upbringing) [1996] 2 FLR 441

[13] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[14] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[15] Helen Reece – “The paramountcy principle: Consensus or Construct?” (1996) Current Legal Problems 267

[16] J. Herring “The Welfare Principle and Parents”

[17] Section 1 of the Children Act 1989

[18] Human Rights Act 1998 s.3; s.4

[19] Article 8 of the European Convention on Human Rights

[20] S. Choudhry and H. Fenwick, “Taking the rights of parents and children seriously: confronting the welfare principle under the Human Rights Act” [2005] O.J.L.S 453

[21] [1998] AC 806

[22] Coudhry and Fenwick, “Taking the rights of parents and children seriously: confronting the welfare principle under the Human Rights Act” [2005] O.J.L.S 453

[23] [2001] Fam 473

[24] [2002] 1 F.L.R 196

[25] Hale L.J. Re O (Supervision Order) [2001] 1 F.L.R 923, CA

[26] [2000] 2 F.L.R, 486

[27] Guardianship of Infants Act 1925

[28] Human Fertilisation and Embryology Act 1990 Chapter 37 section 13(5)

[29] Emily Jackson – Conception and the Irrelevance of the Welfare Principle

[30] Emily Jackson – Conception and the Irrelevance of the Welfare Principle

[31] J. Herring, Family Law (Longman, 2001), at pp 340-341

[32]A. Bainham, 'Honour Thy Father and Thy Mother: Children's Rights and Children's Duties' in G. Douglas and L. Sebba (eds), Children's Rights and Traditional Values (Aldershot: Dartmouth, 1998).

[33]A. Bainham, 'Honour Thy Father and Thy Mother: Children's Rights and Children's Duties' in G. Douglas and L. Sebba (eds), Children's Rights and Traditional Values (Aldershot: Dartmouth, 1998).

[34] Choudhry and Fenwick – Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act

[35] Choudhry and Fenwick – Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act

[36] Choudhry and Fenwick – Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act

[37] John Eeekelaar – Beyond the welfare principle – Child and Family Law Quarterly

[38] Kings, “Playing” p.189

[39] Goldstein, Freud and Solnit, Beyond, p.62

[40] Principles of Family Law – Judith Masson, Rebecca  bailey-Harris and Rebecca Probert

[41] Goldstein, Freud and Solnit, Beyond, p.62

[42] [1998] AC 806

[43] Human Fertilisation and Embryology Act 1990 Chapter 37 section 13(5)

[44] Bainham; Herring; Eeekelaar

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