The Welfare Principle PDF

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The Welfare Principle At the heart of law relating to children is the principle that whenever the court considers a question relating to the upbringing of the children the paramount consideration should be the welfare of the children. Section 1 (1) of the Children Act 1989 states this.

The emergence of the welfare principle What does welfare mean? : These are listed in Children Act 1989, section 1 (3). Decisions relating to children have not always been taken on the basis of their welfare. In the early nineteenth century, the law upheld the right of the father to make decisions for his child: ‘the father knows far better as a rule what is good for his children than a court of justice can’ (Bowen, L.J. in Re Agar-Ellis (1883).

A number of societal changes prepared the way for the emergence of the welfare principle – a rise in individualism, affective relationships, companionate marriage (Stone, 1977) and the emergence of a concept of childhood

The welfare principle was strengthened in the Children Act 1989 by the removal of the word ‘first’. The principle developed in case law and emerged in statute as a byproduct of a struggle to equalize the position of mothers and fathers in relation to the guardianship of their children. Its scope and meaning were enlarged by judicial interpretation. It has been argued that the Human Rights Act 1998 requires the court to reinterpret the word paramount in s1 to mean primary, so that the court can take due account of the interests of parents and others.

What does Paramount mean? : The courts interpretation of the word ‘paramount’ is based on the decision of the House of Lords in J v C, which considered the meaning of the words first and paramount in the Guardianship of Infants Act 1925. Lord McDermott explains that the welfare of the children is the sole consideration. J v C itself was especially significant because the House of Lords made it quite clear that the interests of the children outweigh the interest of perfect parents.

Why welfare? Herring comments: The strength of the welfare principle is that it focuses the court’s attention on the person whose voice may be the quietest both literally and metaphorically and who has the least control over whether the issue arrives before the court or in the way it does. The child may also be the person with whom the court is least able to empathise. (Herring, 1999)

1. The basic rule ‘ who is the subject of the application’? Birmingham City Council v H (A Minor) involved a mother who was herself a minor, being under 16, and her baby. The mother and baby had been taken into care but had been separated. The mother applied for contact with the baby. It was felt that it was in the minor of mother’s interest that contact take place but the contact was not necessarily in the baby’s interest. It was therefore crucial for the court to determine who’s interest was paramount, the mothers or the baby’s and the House of Lords took the view relying on the wording of s1 (1) if the Children Act 1989, that it was the child whose welfare was paramount.

Strengths of the welfare principle:  Discretion- the wide discretion of the judge allows a flexible approach to each case, meaning the individual facts can be taken into account and fairness achieved on a case by case basis  Sends a message- it recognises the value and important of protecting children. It highlights the vulnerability of children and the necessity for their rights to be protecting, as children do not have the same resources available to them that adults have. It encourages parents to put their children’s interests before their own.  It ensures that the children’s views and interests are considered in litigation where otherwise it may be lost as children’s are rarely represented or heard in court.  The welfare principle has important rhetorical and symbolic functions

The Criticism of the Welfare Principle The welfare principle seeks to ensure that children are not exploited for the interests of adults. At least judicial decisions concerning children’s upbringing must be phrased in terms of the benefit of the children. Despite its predominance in the law relating to children, the welfare principle has been criticised. 1. The law has a narrow perception of the welfare: there are a number of factors recognised by science as capable of affecting a child’s welfare, but not given weight in legal decisions King and Piper have argued that the broad range of factors – educational, environmental, financial, genetic and relational which can affect the welfare of the child are narrowed by law to a small range of issues which fall directly under the influence of a judge.

2. Uncertainty: often hard to predict how well someone will look after the child. Judges have a wide discretion meaning it is hard to anticipate the outcome of a case and enables prejudice to affect the decisionMnookin has argued that the welfare principal gives rise to inconsistency and unpredictability. This is because of each individual case. 3. Smokescreen: due to the uncertainty, it may not be evident what the real reasons behind the decision are; the welfare of the child is affected by the

attitude/background that the professionals and jury has. The decision made could be made on an individual’s ideology rather than the child’s welfare. 4. Increased Costs: unpredictability may lead to longer hearings and more substantial preparation which increases the costs involved in litigation It increases the cost of parties. It is harder to negotiate a settlement and court hearings take longer and require more substantial preparation. 5. Unfairness: it does not adequately recognise the rights of parents. A rights based approach would allow all the family’s interests to be taken into account Fails to give weight to the interest of adults. Eeklar suggests that the welfare principle encourages laziness and an unwillingness to pay proper attention to all the interests at stake. Parents usually leave the interests to the professionals to sort out. 6. Unrealistic: Practical reasons are made possible by judges, hence, a child who needs medical condition does not necessarily have to be flown to a top medical hospital in America to be treated by the world’s leading expert. 7. Children’s Rights: Children should be able to make decisions for themselves 8. A further strand of criticism is that the welfare principle is unjust in its focus solely on the child (Elster, 1987; Reece, 1996). It is arguable that, if we were constructing a principle for the first time, our starting point would be equality (Parker, 1994), and we would then adopt some principles of distributive justice 9. 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" 9and the "lack of fairness objection" Firstly, the "lack of transparency objection" means that the interests of others, for example the parents, may overshadow the best interests of the child in certain situations. Lack of fairness objection". - This objection centers 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.

Alternatives: 1) Letting the child decide: It would be unlikely that this would be appropriate expect for mature teenagers who have strong views. 2) Tossing a coin: Elster suggests that disputes over children should be resolved by tossing a coin. This approach is cheap and treats each side equally. However, the approach cannot really be acceptable as it abdicates responsibility for children. 3) Non - legal solutions: Masson suggest that rather than spending resources on lengthy bitter disputes in deciding whether or not there should be contact, recourses may be better spent encouraging the parties to reach their own decision. 4) Presumptions: the child should spend an equal amount of time with each parent after separation.

An alternative to the welfare principle would be an approach based on children’s rights. This approach would give children the same basic rights as adults have, for example, a right to food, clothing etc. It would be a parent’s duty to uphold these rights, and where they failed to do so, the state would be required to provide these basic needs. This approach would also mean in disputes relating to children, the parents rights would also be considered in the decision making process. The welfare approach only focuses on the child, whereas rights based approach could consider the option that would be best for the family as a whole. Arguably this does still uphold the child’s interests, as the welfare of their family is likely to have an impact of the child’s welfare. Only where there were significant reasons would either the child or parents rights be justifiably interfered with.

Will a rights-based approach to a conflict between a parent’s interests and a child’s always produce the same outcome as a welfare-based approach? What are the important differences between the approaches? Consider Clayton v Clayton [2006] EWCA 878 in your answer. No these different approach may lead to different outcomes. In rights based approach both the parents and the child’s interests will be weighed against

each other. It will first be considered whether a right under the ECHR is engaged, then if it is, whether the right can justifiably be breached. Various case law including Scott v UK, suggests that a child’s interests must be considered of particular importance. However, parent’s interests should also be considered. Using the example of Article 8, an interference with a parents right to private and family life will only be justified if it can be shown to be necessary or for the protection of right s and freedoms of others. Therefore, there must be a significant justification to infringe a parent’s right. A welfare-based approach may not always produce the same outcome. The welfare approach puts the child’s interests as the paramount consideration in a case considering the child’s upbringing. Therefore, if a decision would be even slightly negative to the welfare of a child, it is justifiable to infringe a parent’s right. The parent’s rights need not be considered under the welfare principle. This can be demonstrated by Clayton v Clayton where the child’s Article 8 rights were weighed against the father Article 10 rights. In this case, the father right to freedom of expression was upheld allowing the father to write about his behaviour, however, he was not permitted to involve the child in the process. Although the publicity might cause the child a small amount of harm, it does not justify an interference with Article 10 rights. In contrast if a welfare approach were used, even a small amount of harm would justify a prohibition.

Does the welfare principle encompass a presumption that it is in the child’s best interests to be cared for by his/her biological parents? Consider In Re G (Children) [2006] UKHL 43 in your answer. The welfare principle does encompass a presumption that it is in the child’s best interest to be cared for by her/his biological parents. This is due to the reasoning applied in the House of Lords decision in RE G Children 2006. The facts of the case were that a same sex couple had cohabitated.

G conceived two babies due to a donor during this relationship. The couple separated and W still maintained good relations with G and the children. G relocated with the children without telling W. The issue that came to the CA was that W applied for a shared residence order and applied to be the primary career. This was upheld in the CA and G submitted that the courts below were wrong to attach no significance to the fact that G was the natural mother of the children. In the HL it was held the children’s welfare was paramount. G's status as the natural mother of the

children was a significant factor to take into account. “The evidence showed that the children were happy and doing very well in G's home and that should not have been changed without good reason. Although G had deliberately disobeyed the court's order, since she had been located contact arrangements between the children and W had been reinstated and G continued to abide by the order.” Therefore, the court does take into account the significance of the biological account. G was both their biological and their psychological parent and there was no good reason to change the children's primary home. A child should not be removed from the primary care of his or her biological parents without compelling reason. G’s children were happy; w had no compelling reason to remove primary care from G....