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#1857 - The Welfare Principle - Family Law

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The Welfare Principle

Basics of the Welfare Principle

  • s.1(1) CA 1989:

    • When a court determines any question with respect o

      • (a) the upbringing of a child or

      • (b) the administration of a child’s property or the application of any income arising from it

    • the child’s welfare shall be the court’s paramount consideration

  • What does welfare mean?

    • There is no definition of “welfare” in the CA 1989, but there is a list of factors which a judge should consider when deciding what is in the child’s welfare:

      • s.1(3)

        • (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

        • (b) his physical, emotional and educational needs

        • (c) the likely effect on him and any change in his circumstances

        • (d) his age, sex, background and any characteristics of his which the court considers relevant

        • (e) any harm he has suffered or is at risk of suffering

        • (f) how capable each of his parents, and any other person in relation to which the court considers the question relevant, is of meeting his needs

        • (g) the range of powers available to the court under this Act in the proceedings in question

  • What does “paramount” mean?

    • J v C [1970]:

      • Lord McDermott:

        • The phrase means more than the child’s welfare is the top item in a list of items relevant to the matter in question

          • The words connote a process whereby,

            • when all the relevant facts, relationships, claims and wishes of the 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.

      • Herring: So the interest of the children is the sole consideration – everything else is weighed up in relation to this aim,

        • and is only relevant in that it affects the progress of this aim.

        • The interests of the children outweigh even those of perfect parents.

          • This is slightly odd as the words of the statute don’t seem to suggest this is the “sole” consideration

            • And it does mean that the impact on parents and how fair this is, is not a factor to consider.

  • When does the welfare principle apply?

    • This applies when the court is asked to determine any question that concerns a child’s upbringing or the administration of their property

      • Re X (A Child)(Injunctions Restraining Publications)

        • Bracewell J:

          • Upbringing means the bringing up, care for, treatment, education and instruction of the child

            • By its parents or its substitute parents.

    • It is of wide application

      • Applies to s.8 CA 1989 when assessing against s.1(1)

      • Also whenever the court exercises its inherent jurisdiction

      • And indeed where the court considers public law orders such as care orders

      • And on many other occasions...

  • When does the welfare principle not apply?

    • If the issue does not relate to the children’s upbringing

      • It is clear from s.1 of the CA 1989 that the welfare principle only applies to issues of upbringing

        • The court might still pay special attention to the welfare of the child, but it may not be paramount.

      • But this may not always be clear....

        • Re A (Minors)

          • CoA;

            • Deciding whether or not to grant leave to an adult to apply for a s.8 order is not an issue which involves the upbringing of a child

              • But the welfare principle does apply where a child is seeking leave to bring a s.8 order.

        • A v N (Commital: Refusal of Contact:

          • The welfare principle does not apply where the court is deciding whether to send a parent to prison for breach of a court order connected to the child.

        • CC Greater Manchester v KI and KW: CC wished to interview two twins who witnessed their brother shoot their sister.

          • Ryder J

            • The issue is one which involves an aspect of parental responsibility, but it was not exclusively a matter concerning rearing a child

            • Therefore, in view of the public issues involved, a decision under inherent jurisdiction could be taken

              • While welfare was important, due consideration could be taken of the rights and interests of others.

    • Where there is express statutory provision

      • The welfare principle does not apply if a statute expressly states it should not

        • A notable example is in relation to redistribution of property on divorce – the child’s interests are “first” but not paramount.

        • When granting a divorce, the court also need not have any regard to child welfare

    • Outside the context of litigation?

      • The Welfare principle arguably does not apply to parents with respect to their day-to-day decisions relating to a child

        • Lowe and Douglas: Parents are not bound to consider their children’s welfare in deciding whether to make a career move, move house or whether to separate or divorce.

        • BUT Ward LJ (Re W):

          • A parent may choose to conduct himself which has insufficient regard to the responsibilities to his children

            • If he has no parental responsibilities, he is at liberty to conduct himself as he chooses

              • But if he has parental responsibilities, they may restrict his freedom of action

          • He is required, where his children’s upbringing is involved, to have regard also to the welfare of his children.

Conflicts in interests between parents and children

  • The official line

    • Re P (Contact supervision) [1996]:

  • How the courts do also protect parental rights

    • The law makes no attempt to ensure that everything that adults do in relation to children promotes welfare

      • Day to day, parents are not directly supervised, unlike the close regulation of day care centres.

        • If a parent does something which harms the welfare of the child, the court only has powers if the LA or another parent brings up the matter.

    • There are various issues to which the welfare principle does not apply

      • This includes granting a divorce, domestic violence, financial redistribution of divorce etc

        • In these areas the interests of children here are not insignificant, but parent’s interests are particularly weighty.

    • The interests of children and parents are closely identified

      • Re T (A Minor)(Wardship: Medical Treatment) M and F opposed live saving treatment being given to their child C, whereas the unanimous medical opinion was in favour.

        • Butler Sloss LJ

          • The mother and this child are one for the purpose of this unusual case and the decision of the court to consent jointly affects M and the son

            • The welfare of the child depends on M, thus the operation should not go ahead.

      • Herring: by seeing the parents and child as one, it brought parental interests into the scope of the discussion

        • Arguably the independent interests of the pair were hidden.

    • Explicitly limiting the court’s jurisdiction

      • Re F: (Residence: Imposition of Conditions): Court refused to stop M moving out on London as this would be to intervene o the right of the mother to choose where to live

        • There is nothing in the CA 1989 which requires such a limit, but decisions such as this allow the court scope either way.

  • How should the interests of parents and children be balanced?

    • The welfare principle

      • The court should continue to assert that the interests of the children are the sole consideration

    • Bainham: Primary and secondary interests

      • Parent and children’s interests should be classed as either primary or secondary interests

        • Children’s secondary interests should give way to parent’s primary interests

        • And a parent’s secondary interests must give way to children’s primary interests

      • Should also look at in addition the whole “collective family interest”

    • Herring: Relationship based welfare

      • This says that children should be brought up in relationships which promote their welfare.

        • Families and society in general is based on mutual co-operation and support

        • So children should also adopt, to some extent, values of altruism and an awareness of social obligation

          • i.e. should not demand excessive sacrifices from their parents in return for minor benefits

      • Supporting the child’s welfare means supporting the caregiver – this the court can legitimately make an order

        • which benefits the caregiver and not the child, justified on the basis of their past and ongoing relationship.

    • Eekelaar: Modified least detrimental alternative

      • Best solution is to adopt the cause that avoids inflicting the most damage on the well being of any interested individual

        • So if an option greatly promoted the child’s interest but hit the parent hard

        • And an alterative still promoted the child’s interest to a smaller degree but only hurt the parent slightly

          • It is the second option which should be followed.

      • But no option should be followed where the detriments outweigh the benefit to the child

        • Unless that would be the result of any solution (i.e. is unavoidable)

    • Balancing all interests

When will the wishes of children be considered important?

  • Only one of many

    • The statutory checklist lists the ascertainable wishes first numerically, but it is only one of many considerations

    • In deciding whether to follow children’s wishes, the court first establishes whether they are competent

      • And then decides how much weight should be given.

  • Factors to take into account

    • 1. Maturity of the child

      • Sturge and Glaser:

        • The wishes of children under 6 are normally indistinguishable from their main carer’s

        • The wishes of children over 10 should carry considerable weight

        • And between 6-10, children are at an intermediate stage.

      • Re S (Contact: Children’s Views)

        • Tyrer J

          • Views of 16yo and 14yo are well thought out – if law requires young people to respect it,

            • law must also respect young people, even possibly permitting them to make mistakes.

    • 2....

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