#16941 - Children's Welfare And Well Being

PROVISIONS
Children’s Act 1989	Section 1	When a court determines any question with respect to— (a) the upbringing of a child; the child’s welfare shall be the court’s paramount consideration. J v C (Lord MacDermott): Paramountcy 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”

Children’s Act 1989

Section 1

When a court determines any question with respect to— (a) the upbringing of a child; the child’s welfare shall be the court’s paramount consideration.

J v C (Lord MacDermott): Paramountcy 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”

	WELFARE-BASED APPROACH	RIGHTS -BASED APPROACH
Motivation / Rationale	To protect children and promote their best interests — concern that children’s interests often overlooked Emphasises vulnerability of children and dependence on adults	To reject paternalism (assumption that adults know what is best for children) Emphasises capacity of children for self-determination and independence
Differences: Conceptual	(1) As articulated under section 1 Children Act: child’s interests are the sole consideration Welfare-based approach capable of restricting parental or other rights or interests in order to maximise welfare of the child, no matter how small increase in welfare HOWEVER: Mitigated by Herring (relational well-being) (2) Requires courts or parents (or other guardians ) to determine what the child’s interests are (3) Imposes no obligations (4) Potential danger of allowing parents’ interests to be smuggled in indirectly behind the “smokescreen” of welfare (5) Expressive function of welfare message: “You have a responsibility for your child’s welfare”	(1) Child’s rights and interests are not sole consideration Rights-based approach involves identifying and balancing different rights Interests of child may, but will not always, override those of parent or others Requires explicit articulation of all relevant interests at stake — court likely to consider other interests and, even if outcome the same, allows other pries to leave court feeling that case has been looked at from their perspective/rights considered (2) Seeks to promote interests of child as child sees them (or would see them were they capable) — when child is competent, primary decision-maker is the child (3) Existence of rights implies the existence of concomitant duties (ie. child can make claims against court or parents) (4) Explicitly and openly knowledges that parents have rights and requires reasoned consideration as to why these rights are either upheld or interfered with (5) Expressive function of rights message: “You have rights” (6) Rights that cannot necessarily be demonstrated to promote welfare (eg. right to know about genetic origins)

Motivation / Rationale

To protect children and promote their best interests — concern that children’s interests often overlooked

Emphasises vulnerability of children and dependence on adults

To reject paternalism (assumption that adults know what is best for children)

Emphasises capacity of children for self-determination and independence

Differences: Conceptual

(1) As articulated under section 1 Children Act: child’s interests are the sole consideration

Welfare-based approach capable of restricting parental or other rights or interests in order to maximise welfare of the child, no matter how small increase in welfare
HOWEVER: Mitigated by Herring (relational well-being)

(2) Requires courts or parents (or other guardians ) to determine what the child’s interests are

(3) Imposes no obligations

(4) Potential danger of allowing parents’ interests to be smuggled in indirectly behind the “smokescreen” of welfare

(5) Expressive function of welfare message: “You have a responsibility for your child’s welfare”

(1) Child’s rights and interests are not sole consideration

Rights-based approach involves identifying and balancing different rights
Interests of child may, but will not always, override those of parent or others
Requires explicit articulation of all relevant interests at stake — court likely to consider other interests and, even if outcome the same, allows other pries to leave court feeling that case has been looked at from their perspective/rights considered

(2) Seeks to promote interests of child as child sees them (or would see them were they capable) — when child is competent, primary decision-maker is the child

(3) Existence of rights implies the existence of concomitant duties (ie. child can make claims against court or parents)

(4) Explicitly and openly knowledges that parents have rights and requires reasoned consideration as to why these rights are either upheld or interfered with

(5) Expressive function of rights message: “You have rights”

(6) Rights that cannot necessarily be demonstrated to promote welfare (eg. right to know about genetic origins)

Theoretical Perspectives on Children’s Welfare — Academic Commentary
*Reece 1996	Argument: Attack on paramountcy principle illustrated through caselaw on presumption against same-sex parenting (1) Rejects key justifications given for the paramountcy principle: (a) “Children have the right to have their welfare prioritised” HOWEVER: Rests of two assumptions: children have special rights (over and above human rights); and among these special rights is the right to have their welfare prioritised circular: “assumes what is to be justified, namely the special position for children” (b) “Children are more vulnerable” HOWEVER: (i) Child not necessarily the most vulnerable individual in a given case and (ii) Fallacy of equating protection with priority (c) “Children must be given the opportunity to become successful adults” HOWEVER: Self-defeating argument – makes importance of childhood contingent on/subordinate to importance of adulthood (2) Emphasises narrowness of principle: focuses on welfare of a particular child(ren) directly in the court’s view (3) Application of principle potentially harmful — allows other policies/principles to smuggle themselves into children’s cases Eg: Case law regarding presumption against homosexual parenting on the basis of welfare Smothering of debate “the very purpose of the paramountcy principle” — strength in its “apparent neutrality” – incl. promoting nuclear family (4) Principle contributes to the creation of a more repressive society: (a) Reinforces individual parental responsibility for child’s welfare and negates social responsibility: Individualised focus — not concerned with social responsibility for welfare Eg: Effect of stigmatisation argument in relation to same-sex parents harmful to welfare of children as a group: (a) Self-perpetuating – increases stigma suffered by children brought up by gay parents (b) Increases prejudice, leading to ‘more gay parents remaining closeted’ detrimental effect on children Instead, solution lies with society (to eliminate prejudice against homosexual parents) (b) Endorses status quo: Children’s cases can never be used to counteract/compensate for social injustice (c) Allows adults’ rights to be subordinated to children’s needs
*Herring and Foster (2005) (2012)	NOTING that: Children Act 1989 includes checklist of factors but no guidance as to how factors to be weighed; welfare principle commonly presented in individualistic terms, requiring court to promote interests of child without reference to interest of others: Argument: Defence of welfare principle based on a relationship-based approach — best interests should be understood to recognise importance of relational interests, performance of obligations, and virtue of altruism to human flourishing, and thus well-being (1) Behind judicial determinations of ‘welfare’ lies an Aristotelian notion of the ‘good life’ Essential component of the ‘good life’ is that humans are quintessentially relational beings — must consider network of relationships within which a person lives (relational creatures) Within this, best way of promoting welfare is to ensure that child raised in healthy relationships Healthy relationships involve give and take — will not always require children’s interest be prioritised (ie. accept occasions which require sacrifices as part of a beneficial ongoing relationship) Woodhouse: Fallacy that children can thrive while care givers struggles, or that care giver’s needs can be severed from the child’s Thus: Proper understanding of well-being can require decisions to be made which will primarily benefit another person (2) Because judges enjoined to undertake holistic assessments, must consider network of relationships Judge properly applying welfare principle should decline to make order which causes significant harm to others to procure a small gain for the child (3) Courts do, in practice, consider such relationships: Repeated emphasis that best interests determination as “holistic” — while relevant determination is of particular child, courts recognise it is wrong to pretend the person has no social context In considering all relevant circumstances (as law requires) judge must consider nexus of relationships in which child exists Courts have often endorsed procedures on children which confer no clear medical benefit and which may indeed by physically harmful Eg: Non-therapeutic circumcision — permitted on best interests (maintaining child’s place in network of relationships
Compatibility between English and European Law — Academic Commentary
Wallbank, Choudhry and Herring (2010)	While English courts have denied any difference between welfare-based and rights-based approach, two key differences: (i) ECtHR has clearly stated need to engage in exercise balancing the rights of the parties (cf. UK does not allow balancing — paramount as “sole”) (ii) ECHR approach implies that the interests of the child will not always override those of the parent Argument: Noting that both welfare- and rights-based approach criticised for taking over-individualistic approach, propose ethic of care: (1) Caring as the very essence of life: not only an inevitable part, but a good part of life (2) Ethic of care promotes vision of mutually interdependent relationships as norm around which legal and ethical responses should be built (3) Emphasises responsibilities of people towards each other in mutually supporting relations (ie. concerned with relational obligations) Sees interests of carers and cared-for as importantly intertwined — interdependence, not competition
Problems in Practice: MEDICAL — Academic Commentary
Herring and Gilmore (2011)	NOTING: Lord Scarman Gillick competence test and Re R and Re W finding that child could have legal capacity to consent to treatment BUT not to refuse treatment Argument: Partial defence of EWCA controversial view that there can be concurrent powers to give effective consent to medical treatment in parent and child Distinction between (i) refusal to consent to specific treatment and (ii) refusal to consent to all treatment In order to give effective consent to specific treatment child needs only to understand the nature of the treatment proposed Does not necessarily follow from fact that child has capacity to consent to specific treatment that the child also has capacity to refuse all treatment Where child competent to give valid consent to certain specific treatment, but lacks capacity to refuse all treatment, parental responsibility survives existence of the child’s (limited) power to consent — ie. concurrent powers limited to cases where child lacks capacity to refuse all possible treatment
Problems in Practice: MEDICAL — Cases
*Gillick (1989) UKHL	...

*Reece

1996

Argument: Attack on paramountcy principle illustrated through caselaw on presumption against same-sex parenting

(1) Rejects key justifications given for the paramountcy principle:

(a) “Children have the right to have their welfare prioritised”
- HOWEVER: Rests of two assumptions: children have special rights (over and above human rights); and among these special rights is the right to have their welfare prioritised circular: “assumes what is to be justified, namely the special position for children”
(b) “Children are more vulnerable”
- HOWEVER: (i) Child not necessarily the most vulnerable individual in a given case and (ii) Fallacy of equating protection with priority
(c) “Children must be given the opportunity to become successful adults”
- HOWEVER: Self-defeating argument – makes importance of childhood contingent on/subordinate to importance of adulthood

(2) Emphasises narrowness of principle: focuses on welfare of a particular child(ren) directly in the court’s view

(3) Application of principle potentially harmful — allows other policies/principles to smuggle themselves into children’s cases

Eg: Case law regarding presumption against homosexual parenting on the basis of welfare
- Smothering of debate “the very purpose of the paramountcy principle” — strength in its “apparent neutrality” – incl. promoting nuclear family

(4) Principle contributes to the creation of a more repressive society:

(a) Reinforces individual parental responsibility for child’s welfare and negates social responsibility:
- Individualised focus — not concerned with social responsibility for welfare
- Eg: Effect of stigmatisation argument in relation to same-sex parents harmful to welfare of children as a group:
  - (a) Self-perpetuating – increases stigma suffered by children brought up by gay parents
  - (b) Increases prejudice, leading to ‘more gay parents remaining closeted’ detrimental effect on children
  - Instead, solution lies with society (to eliminate prejudice against homosexual parents)
(b) Endorses status quo: Children’s cases can never be used to counteract/compensate for social injustice
(c) Allows adults’ rights to be subordinated to children’s needs

*Herring and Foster

(2005) (2012)

NOTING that:

Children Act 1989 includes checklist of factors but no guidance as to how factors to be weighed;
welfare principle commonly presented in individualistic terms, requiring court to promote interests of child without reference to interest of others:

Argument: Defence of welfare principle based on a relationship-based approach — best interests should be understood to recognise importance of relational interests, performance of obligations, and virtue of altruism to human flourishing, and thus well-being

(1) Behind judicial determinations of ‘welfare’ lies an Aristotelian notion of the ‘good life’

Essential component of the ‘good life’ is that humans are quintessentially relational beings — must consider network of relationships within which a person lives (relational creatures)
- Within this, best way of promoting welfare is to ensure that child raised in healthy relationships
  - Healthy relationships involve give and take — will not always require children’s interest be prioritised (ie. accept occasions which require sacrifices as part of a beneficial ongoing relationship)
  - Woodhouse: Fallacy that children can thrive while care givers struggles, or that care giver’s needs can be severed from the child’s
  - Thus: Proper understanding of well-being can require decisions to be made which will primarily benefit another person

(2) Because judges enjoined to undertake holistic assessments, must consider network of relationships

Judge properly applying welfare principle should decline to make order which causes significant harm to others to procure a small gain for the child

(3) Courts do, in practice, consider such relationships:

Repeated emphasis that best interests determination as “holistic” — while relevant determination is of particular child, courts recognise it is wrong to pretend the person has no social context
- In considering all relevant circumstances (as law requires) judge must consider nexus of relationships in which child exists
Courts have often endorsed procedures on children which confer no clear medical benefit and which may indeed by physically harmful
- Eg: Non-therapeutic circumcision — permitted on best interests (maintaining child’s place in network of relationships

Compatibility between English and European Law — Academic Commentary

Wallbank, Choudhry and Herring

(2010)

While English courts have denied any difference between welfare-based and rights-based approach, two key differences:

(i) ECtHR has clearly stated need to engage in exercise balancing the rights of the parties (cf. UK does not allow balancing — paramount as “sole”)
(ii) ECHR approach implies that the interests of the child will not always override those of the parent

Argument: Noting that both welfare- and rights-based approach criticised for taking over-individualistic approach, propose ethic of care:

(1) Caring as the very essence of life: not only an inevitable part, but a good part of life
(2) Ethic of care promotes vision of mutually interdependent relationships as norm around which legal and ethical responses should be built
(3) Emphasises responsibilities of people towards each other in mutually supporting relations (ie. concerned with relational obligations)
- Sees interests of carers and cared-for as importantly intertwined — interdependence, not competition

Problems in Practice: MEDICAL — Academic Commentary

Herring and Gilmore (2011)

NOTING: Lord Scarman Gillick competence test and Re R and Re W finding that child could have legal capacity to consent to treatment BUT not to refuse treatment

Argument: Partial defence of EWCA controversial view that there can be concurrent powers to give effective consent to medical treatment in parent and child

Distinction between (i) refusal to consent to specific treatment and (ii) refusal to consent to all treatment
- In order to give effective consent to specific treatment child needs only to understand the nature of the treatment proposed
- Does not necessarily follow from fact that child has capacity to consent to specific treatment that the child also has capacity to refuse all treatment
  - Where child competent to give valid consent to certain specific treatment, but lacks capacity to refuse all treatment, parental responsibility survives existence of the child’s (limited) power to consent — ie. concurrent powers limited to cases where child lacks capacity to refuse all possible treatment

Problems in Practice: MEDICAL — Cases

*Gillick

(1989) UKHL

...

#16941 - Children's Welfare And Well Being - Children, Families & the State

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