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....