#14817 - Children's Welfare - Children, Families & the State

What is the paramountcy principle?

• Principle is enshrined in s 1(1) of the Children Act: the welfare of the child is to be considered paramount by the court when determining matters relating to the child’s upbringing

• Seminal decision on interpreting the principle is J v C: paramount is defined in terms of being ‘overriding’ by Lord MacDermott after all things are considered and weighed; the course of action to follow is the one that is in the interest of the child’s welfare

• In other words, the child’s welfare is a trump card (ie. children’s interests matter more than others)

There is widespread consensus as to the utility of the paramoutncy principle:

• Author argues that the principle despite resting on shaky theoretical grounds, attracts a solid consensus (ie. has been described as the heart/bedrock of the Children Act)

• It is considered so widely accepted that debate concerns areas in which the principle hasn’t been applied (cf. whether or not the principle is appropriate in the first place)

• Criticisms of the principle concern it’s application as opposed to it’s theoretical basis

Criticisms of the principle:

• Indeterminacy: the main criticism of the principle relates to difficulties in its application ie. although there is widespread agreement that the principle should be paramount, there is no consensus as to what the welfare of the child demands (what is the definition of the child’s best interests; who decides?)

• Value-laden: criticisms also relate to the application of the principle by judges, arguing that the decisions made are value-laden (EG. May v May: the father was stricter in his parenting style than the carefree approach of the mother and he was granted custody)

• Subjectivity: decisions are made on the subjective beliefs and values of individual decision-makers

• *Note: the fact that there are so many criticisms of the principle reinforces its legitimacy ie. it is still accepted despite widespread criticism, suggesting the theoretical underpinnings of the principle are unrivalled

• Interesting to note that those who do argue for repeal of the principle argue from within the confined of best interests (eg. Fineman argues that the principle should be replaced with a predictable primary caretaker rule because this would truly serve the best interests of the child)

• Reece argues that anyone who is arguing for a repeal of the principle but is arguing from the best interest standpoint is actually arguing for a reformulation of the principle rather than a repeal

What are the justifications for the principle?

• Children have the right to have their welfare prioritized:

• Utilitarian argument which assumes that children have special rights (outside of human rights) and that they have a special right to be prioritized in terms of welfare

• Reece rejects this by saying even if children do have special rights, they wouldn’t have a special right to have their welfare prioritized and the argument fails in assuming this special position of children

• The vulnerability of children demands special protection form adults:

• Reece argues the child in the specific case might not be the most vulnerable individual

• Argues that this argument is a fallacy (despite explaining the consensus) as it equates priority with protection ie. just because children may need protection this doesn’t mean their welfare should be prioritized and weakening the priority of children’s interests doesn’t necessarily equate to a weakening of protection

• Children need to be given the opportunity to become successful adults:

• Reece argues this a self-defeating argument (ie. why become a successful adult if your interests will be subordinated to those of children) (*questionable)

• Argues that this line of thinking makes the importance of childhood contingent on the importance of adulthood and promotes the future at the expense of the present (*questionable)

• Adults create children:

• It is not self-evident that children are more important than adults just because they are created by adults and many religions believe the reverse to be true

• Argument from Solomon:

• A desire to make sacrifices for your children is the mark of parenthood

• Utilitarian arguments:

• Prioritising children’s interests builds a good nation for the future (ie. good for society)

Inadequacy of any justification based on childhood or the concept of children

• Reece argues all of the above justifications are inadequate to rationalize use of the paramountcy principle

• The reason for this is bc of the narrowness with which the court’s have applied the principle to the individual child in the courtroom

• Uses case examples where both mother and child are ‘children’ for the purposes of the Act in order to show how narrow the principle has been construed

• The question in these cases of whose interests were to be prioritized given the fact that both mother and child were children was resolved by determining who the child was that was the subject of the application (ie. depending on the semantic structure of the subsections)

• This demonstrates that any justification that is advanced which is based on childhood or children as a group is insufficient, given the importance placed on the individual child

Why the principle is harmful: gay parenting case study

• Uses the case study of gay parenting to illustrate the point that the principle is more than a harmless statement of intent and can be dangerous

• In these cases, Reece demonstrates that courts have favoured heterosexual relationships over homosexual relationships (C v C’s presumption that heterosexuality was to be favoured to be overcome by gay parents)

• Justifications in favour of the presumption:

• Physical abuse = outright rejection

• Corruption (ie. more likely to be gay) = best response is no response bc this argues that homosexuality is inferior

• Stigmatisation of the child (ie. severance from normal society)

• Argument of Reece is that judges are taking judicial notice of the undesirability of homosexuality, in the absence of evidence and seeing the nuclear family as ideal (as evidenced in the C v C decision) and in the event of a marriage breakdown, privileging the next best thing

• Reece argues this case study shows that a policy has in fact usurped the application of the paramountcy principle (privileging of nuclear family units or closest to) which will affect anyone part of a group that deviates from the norm

• The policy is one of support for the nuclear family unit which can be broadened into a policy which supports normality or suppressing any deviations from the norm

• Because of the indeterminacy of the principle, this policy application has taken over and the parent who gets custody is the one who best fits the normality mould

• Arguments and indeterminacy, value-laden judgments and subjectivity of decision-making fall down because the policy is in fact determining the outcome, hiding behind the screen of the paramountcy principle

• This policy is extraneous to the welfare of the child (ie. it’s not the paramountcy principle being applied at all bc no evidence)

• Although this is not the only policy dictating outcomes, it is used as an example in order to aid in the acceptance of outcomes being dictated not by the paramountcy principle but by extraneous policies

Societal goals vs. the individual: the stigmatization argument

• The policy of promoting the nuclear family is not about the individual but is about the good of society

• Only individuals are meant to be in reach of the principle and Reece uses the stigmatization argument as an example of the way in which the application of the policy can harm the welfare of children

• Only society can promote children’s welfare (as a group) and therefore the paramountcy principle is not effective in promoting welfare as a group but the stigmatization which occurs actually increases prejudice and the possibility of parents remaining closeted which can be harmful to the individual child

• The solution is that it’s for social policy and not individual parents to eliminate prejudice and reduce the stigmatization of children

• Argument is that the paramountcy principle is not only ineffective but it is harmful as it contributes to a repressive society because it:

• Places the responsibility for the child’s welfare on parents and not society

• It endorses the status quo which has a regressive effect on societal development

• It subordinates the rights of adults to the...