What are the strengths and weaknesses of the welfare approach PDF

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What are the strengths and weaknesses of the welfare approach? If it were abandoned, what should replace it? How would your proposed replacement address its defects? INTRODUCTION This essay aims to critically access the welfare approach undertaken by courts in family law. In order to achieve this, the strengths and the weaknesses of the welfare test will be established. Furthermore, the essay will analyse whether the key defects in the test are compensated by their strengths and how, if possible, these defects can be reformed. Finally, this essay will propose a replacement to address the defects of the welfare approach. THE WELFARE PRINCIPLE The welfare principle which is the central principle of child law, is the principle that states that whenever the court answers a question relating to the upbringing of children, the paramount consideration should be their welfare. Although there is no specific definition of the word ‘welfare’, section 1(3) of the Children Act 1989 states a checklist of factors which a judge should consider when deciding what is the child’s welfare.1 This is how the courts gain knowledge about the welfare of a child. According to section 1(1) of the Children Act 1989, when a court determines any question with respect to the upbringing of a child, the administration of a child’s property or the application of any income arising from it, the child’s welfare will be the court’s paramount consideration.2 Therefore, this section clarifies that the court has to reach a decision based on what is in the child’s best interests because his/her welfare is the principal concern.3 The significant House of Lords case, J v C explains that the word ‘paramount’ means that the child’s welfare is to be treated as the top item in a list of items relevant to the matter.4 It can be argued that this interpretation means that the welfare of the child is the sole consideration and the interests of adults and other children are only relevant so far as they might affect the welfare of the child in question.5 That is to say that fairness or the infringement of the rights of a 1 Children Act 1989 s1(3) 2 Children Act 1989 s1 (1) 3 Med. L. ‘Disputes between parents, immunisation and the welfare of the child’ [2003] Rev 412, 377-380 4 J v C [1970] AC 668 5 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011) 417

parent is not relevant in making an order, all that matters is whether the order promotes the interests of the children. DEFECTS IN THE WELFARE PRINCIPLE The welfare principle has some weaknesses despite its predominance in the law relating to children. Firstly, it can been argued that the welfare principle has a narrow understanding of welfare. There are other factors that need to be taken into account in deciding the welfare of a child. For example genetic, relational, financial , educational and environmental are also significant factors. It has been suggested that science recognises these factors as relevant in determining the welfare of the child but the law does not. Hence, the law narrows these factors to a small range of issues that fall directly under the discretion of the judge or adult parties to the litigation process.6 This means that the court is restrictive in determining the welfare of a child therefore it ignores some other relevant factors that need to be taken into consideration. Secondly, it has been argued that the principle gives rise to uncertainty in this area of law. This makes the welfare principle inconsistent and unpredictable.7 The actual facts are not known by the judge because there is often conflicting evidence given by the parents as to the history of their relationship. Thus, the court may try to predict how well the parents will be able to take care of the children but it may be difficult to establish who is better at taking good care of them. Also, the uncertainty of the welfare principle may encourage a parent to have a judicial hearing rather than a negotiated settlement. This is because it is hard to anticipate how a judge will decide a case. This can increase the costs for the parties as the complexity of the test means that court hearings take longer and require more extensive preparation. 8 Furthermore, it has been argued that the principle gives the judge a wide discretion in deciding what is in the child’s welfare.9 This is because the law is ambiguous therefore judges take it upon themselves to be discrete in their judgments. However it has also been argued that the existence of widely held legal presumptions and 6 King M. & Piper C. ‘How the Law thinks about Children’, (2nd edn , Aldershot: Ashgate 1995) 50 7 Guggenheim M. ‘Ratify the UN Convention on the Rights of the Child but don’t expect any miracles’, [2006] ILR 41 8 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011) 431 9 Elster J, ‘Solomonic judgments Against the best interests of the child’, [1987] University of Chicago Law Review, 54

assumptions in relation to the children’s welfare has ‘fixed a set agenda’ for determining welfare.10 It has also been argued that the welfare test is unfair. This is because it fails to give adequate weight to the interest of adults concerned. For instance, the case Re P stated that the court is only concerned with the interests of the mother and father only in so far as they bear on the welfare of the child. 11 In effect, this can be argued to mean that the principle fails to take into account the impact of the Human Rights Act 1998 which supposedly requires the court to pay attention to the rights of adults and children.12 For example, some may argue that the decision in the case Re F paid no attention to the rights of the mother. This is based on the fact that the courts unduly restricted her autonomy by refusing to allow her to travel abroad because it wasn’t in the best interest of the children.13 Therefore, it can be argued that the welfare test assumes sacrifices of the parents in order to achieve good parenting and good family life, even though the decision that the parents wants to make may benefit the family as a whole. In addition, it can been argued that the welfare principle is inconsistent. This is because, in a case where there is only one child, the parents have to sacrifice for the children. However, if there are two children involved, the court tries to balance the interests of the children by making a child sacrifice for the other. Thus, it can be argued that this is not necessarily justifiable. THE STRENGTHS OF THE WELFARE PRINCIPLE It is unmistakable that there is a higher end of the scale of the welfare approach taken by the courts. It can be argued that the fact that the welfare principle is uncertain enables the court to produce results which are flexible and responsible to individual needs of each child in every case. This is clearly an advantage due to the fact that it allows diversity in cases because children are different from each other. Also, it can be argued that since the principle is child centred, it focuses on the child rather than parental conflict. This means that the court’s main focus is not on any battle between the child’s parents but on the interests of the child. In addition, this child-centred approach recognises the vulnerability of the child. Through this 10 O’Halloran ‘The Welfare of the Child’, (Arena 1999) 305 11 Re P (Contact: Supervision) [1996] 2 FLR 314 [328] 12 Archard D. ’Children, Family and The state’, (Ashgate, 2003) 41 13 Re F [2002] 1 FLR 217 636

recognition, the child is also given protection under the law because without the principle, it would be easy for the interest of the child to be lost in court proceedings.14 This is because there is rarely an advocate for the child in dispute cases so the principle acts as a representative of the child. Also, this welfare test and standard gives an insight to the reasoning that the court uses to come to a decision hence it promises constituency. Additionally, it can be argued that although it is established that the test is child centred, there are a number of cases in which the court acts in favour of the parents so as to act in the interests of the child. Hence, despite the existence of the principle, the courts have been able to protect the interests of the parents. For instance, in the case Re T(A minor) that involved parents that opposed life-saving medical treatment to be given to their child, the court held that It would not be in the child’s best interests for the treatment to go ahead because of the pressure that it would put on the parents.15 Therefore, it can be argued that in some cases, the court tries to merge the interests of the parents with the children by taking account of the parent’s interests under the ‘umbrella’ of the child’s welfare.16 Moreover it has been argued that only where it has been accepted that the issue is not one about the upbringing of a child, have the courts conscientiously balanced the child’s rights with other rights and interests.17 ALTERNATIVES TO THE WELFARE PRINCIPLE Firstly, it can be argued that the welfare principle should take the approach of the UN Convention on the rights of children. This is because in Article 3 of the Convention, it states that the child’s welfare should be the primary consideration. This places less weight on the children’s interests than s 1 of the Children Act 1989 and takes due account of the interests of parents and others.18 However, it can be argued that this may not make a significant difference in the law because courts may still take the approach of putting the child’s interest at the top of the list. Secondly, it has been suggested that since the courts are unable to predict what will promote the child’s 14 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011) 432 15 Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 FLR 502 16 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011) 422 17 Masson J, Bailey-Harris R, Cretney S.M, Probert R, ‘Principles of Family Law’ (8th edn, Sweet & Maxwell 2008) 517 18 Choudhry Shazia & Fenwick Helen, ‘Taking the rights of the parent and children seriously: confronting the welfare principle under the Human Rights Act’ [2005] Oxford Journal of Legal Studies, 453-492

welfare, tossing a coin should not be a bad idea. This approach is less costly and maintains equality between all the parties involved. However, this method is quite irresponsible because it does not take the child’s interest seriously. There are also cases where the court is able to predict what is and isn’t in the child’s interest therefore it will be unjust to take this approach. Thirdly, the courts can re-arrange the welfare test so that more of the parents and siblings interest will be taken into account when making decisions. This is based on the fact that a family does not constitute the child alone therefore making that particular child paramount and paying no attention to the rest of the family can lead to problems with family life. In addition, some have argued that it is better for social workers to assist the family because it will be more effective than legal intervention. It has been argued that instead of spending time and resources over disputes in court, it may be healthier if social workers encourage the parties to reach their own decision.19 CONCLUSION This essay has critically assessed the welfare principle which is a standard used by the courts to decide disputes that involve children. Its strengths and weakness have been analysed in depth as well as alternatives to the principle. These alternatives may not be the finest approach because they also have their strengths and weaknesses but the court needs to re-examine the welfare principle because they are many problems associated with it. Although some of the key defects in the principle are compensated by their strengths, the law needs to make improvements in the principle so that the child’s best interests are taken into consideration as well as others that are involved with the child. WORD COUNT : 2,046

19 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011)

BIBLIOGRAPHY Cases and Legislation Children Act 1989 Human Rights Act 1998 United Convention on the Rights of Children (UNICEF) J v C [1970] AC 668 Re F [2002] 1 FLR 217 636 Re P (Contact: Supervision) [1996] 2 FLR 314 [328] Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 FLR 502 Articles and books Archard D. ’Children, Family and The state’, (Ashgate, 2003) Choudhry S. & Fenwick H, ‘Taking the rights of the parent and children seriously: confronting the welfare principle under the Human Rights Act’ [2005], Oxford Journal of Legal Studies, 453-492 Elster J, ‘Solomonic judgments Against the best interests of the child’, [1987] University of Chicago Law Review, 54 Guggenheim M. ‘Ratify the UN Convention on the Rights of the Child but don’t expect any miracles’, [2006] ILR 41 Herring Jonathan, ‘Family Law’ (5th edn, Pearson Education Limited 2011) King M. & Piper C. ‘How the Law thinks about Children’, (2nd edn , Aldershot: Ashgate 1995) Masson J, Bailey-Harris R, Cretney S.M, Probert R, ‘Principles of Family Law’ (8th edn, Sweet & Maxwell 2008) 517 Med. L. ‘Disputes between parents, immunisation and the welfare of the child’ [2003] Rev 412, 377-380

O’Halloran ‘The Welfare of the Child’, (Arena 1999) 305...