#17067 - Family S.25 - Family Law

S8 certain orders people can apply for, able to deal with a wide range of disputes (not exhaustive)

The welfare principle:

• S1(1) CA 1989: when a court determines any question with regards to:

  • A child’s upbringing (or aspect)

  • Administration of child’s property

• The child’s welfare SHALL be the PARAMOUNT consideration

• But what does welfare mean?

  • No statutory definition

  • Re McGrath (infants) (1893): welfare of the child is not to be measured by money alone nor by physical comfort only. The word welfare must be taken in its broadest sense. The moral and religious welfare must also be considered as well as its physical well-being. Nor can the ties of affection be ignored. Not money/ luxurious or physical benefit only, not determinative- ie. Emotional, moral, religious- balance all aspects for child’s development

  • CF v. Secretary of State: concepts of welfare have changed and will continue to change -no set concept, look at particular child, different child will react differently, ie. Old school physical punishment is not acceptable now and will cause some child to rebel

  • Consider Re G (Education: Religious upbringing):

    • Welfare is synonymous with well-being and interests

    • Long term welfare- which education will bring widest range of opportunities in the future

    • Not baseless prediction but need to work out facts the court have to consider

    • Embraces everything that relates to a child’s development as a human being

    • Must consider welfare now, throughout minority and into and through adulthood

    • Should take medium to long term view

    • Should not accord excessive weight to short term or transient factors

    • How far into the future depends on context and nature of the issue

    • Involves a welfare appraisal in the widest sense

    • Taking account of where appropriate: wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations

    • Everything that relates to a child’s present and future life is potentially relevant

    • Judge must take a holistic approach

    • In court’s discretionary, case to case basis- Court too much power? But what alternative? Can we structure discretion as different child needs different things- Discretion inevitable but can possibly do better in Child Act, current state welfare is fluid

    • Undesirable and impossible to set bounds to what is relevant

    • Welfare cannot be assessed in isolation and must consider child’s network of relationships (John Herring: relationship based welfare- law should be amended to reflect that, Court claim in practice they are looking at it)

  • Thus, there is a high degree of discretion and context involved

  • Are there any guidelines or factors?

    • S1(3): welfare checklist to which the courts must have regard to in:

    • S1(4): all contested S8 applications, applications for SGO, all proceedings for care and supervision. May also be used for other proceedings such as PR applications.

    • Common factors, up to judge to decide to include which and consider how much weight of the factors, and can consider factors outside checklist if relevant to child- Law does not set

    • Checklist is not exhaustive or definitive

    • Does not specify how much weight to accord to each factor

    • Judge can consider outside factors if relevant

• S1(3) Welfare Checklist:

  1. Ascertainable wishes and feelings of child in light of his age and understanding

     • Re P(minors): not determinative

     • Re P-S(children): no presumption that wishes of mature child must prevail

     • But wishes of mature children where appropriate do carry some weight

     • In Re JS (a child) (Disposal of Body)[2016] –On how to preserve body of the terminal ill child, opposed by estranged father on religious grounds: child can explain their wishes in details so well and court thinks is most important decision (not always the case)- Factor motivated judge is that her wishes is so strong and able to articulate, none of other considerations can come close, is in her welfare and only way that make her comfort to ensure her final wishes to enjoy her last few months by bringing her peace

     • But ultimate decision depends on welfare

     • Court not compel to reflect child’s wishes, not always deserve some/any weight but not utmost important- maybe not what child want but best interest

     • Gillick: not apply, competent will only bring more weight but ultimate discretion lies in hands of judge

  2. Child’s physical, educational and emotional needs

• Stephenson v. Stephenson: disadvantages of a material sort carry little weight

• But must at least be able to have basics

• Not determinative but need to be in position to meet child’s minimum basic needs

• Re G (Education: Religious Upbringing): consider the child’s relationship network to each parent and extended family

• Brixley v. Lynas: needs of very young child served by mother –not blanket presumption, very young child needs related to sex factors ie. Breast-feed for new-born to 1 years old, rather as a recognition

• But is there presumption in favour of mother being better able to serve child’s needs? Father’s right group oppose- Court always in favour of mother able giving care and bond with child

• Re W(A minor) (Residence Order): yes, but in the case of very young baby (not set and need round the clock care but if use bottle-feed using formula milk since born will not be the case)

• Re G (children) (Same Sex Partners): no, welfare is paramount (no one parent is assumed or presumed to be better to provide care)

• Is there a presumption that child’s needs are best served by natural parent?

• Re G (children) (Same Sex Partners): seem to indicate that being natural parent carries more weight Lesbian couple with one genetic and one social parent, toe-to-toe battle won by genetic parent (only as a tie-breaking factor)

• Re B (A child) (Residence: Biological Parents): that may be ordinarily true. But many disputes are not ordinary. All considerations...must be firmly rooted in an examination of child’s best interests. This is the paramount consideration. Non-genetic parent (grandparents) awarded against biological father as he is clearly not capable, irrelevant if any genetic links as child’s welfare does not lie in him

• Re M (child’s upbringing): Zulu child, biological, cultural heritage Parent work for white south-African family and agreed to adopt informally- brought to England together and treat as own child, settled and raised as an English child (biological parents think will return in some time)-Delicate in discretion: court pays great emphasis on the link of tribe links, consider child’s wishes (to stay with adopted parents) but to recognise biological heritage and physical differences leading to identity issues- return to biological parents to serve his biological and emotional link, child refused to go and need to be physically forced to South Africa and traumatised, returned after one year (Could court had predicted such result? Court considered colonial history?)

• Re G (Education: Religious Upbringing): must be careful that education should not be too narrow and restrictive to limit child's future opportunities

  1. The likely effect on the child of any change in circumstances

• D v. M (A minor: custody appeal): continuity of care is a most important part of child’s security

• S v. W: the more satisfactory the status quo, the less reason for changing it -Is there anything wrong with current arrangement, if no good reason to change, any change will be negative

• If decision requires child to change environment and routine, there should not be much inconsistency in child’s life- short term uncertainty v long term good? If will lead to uncertainty will be not in child’s interest

• J v. C: similar to Re M(Spanish heritage) but decided to remain in adopted family, ethnic and biological heritage not most important – different judges different discretion will lead to different outcome

  1. child’s age, sex, background and any characteristics

• Unique to the child, ie. Disability ,learning needs- need parent to meet special needs and greater understanding of the need

• Is religious considerations an important factor?

• Depends on whether religion will play a significant part of child’s life ie. When religion will have significance difference to the culture and, depend on religion (no religion supreme) Discretionary

• Re J (Specific Issue Order: Muslim Upbringing and Circumcision) Depend on primary carer, other parent can introduce religion in his contact time, but cannot force primary carer to practice religion not hers, will allow child to make choice when reach maturity and understand belong to mix-heritage or else will confuse

• But even where it is a factor, must ultimately depend on child’s welfare

• Re G (Education: Religious Upbringing) Even if religion is very important to the child, but if act or dispute will negatively impact their welfare, will safeguard welfare

  1. Any harm child has suffered or is at risk of suffering

• Re M and R( Child abuse: Evidence): must be based on facts, not suspicion or mere doubts

• Re B (children) (Care Proceeding: Standard of Proof): balance of probabilities

  1. How capable each parent or any other relevant person is in meeting child’s needs

• What is the meaning of paramount?

  • J v. C: welfare is the courts sole concern and any other factors are only relevant to that ends

  • Domestic: Child interest supreme- prima facie clash, different in words but similar in balancing exercise from Art 8 ECHR- same outcome and similar substance, issue evading

  • But is it compliant with Art 8 ECHR

  • English judges have said it is

  • ECHR jurisprudence has increasingly used terminology which has suggested that welfare of child is paramount

• Besides S1(1), do...