Submitted by: Thomas Brangam
‘Is the welfare principle in need of urgent reform?’
Introduction
The welfare principle, or the principle of paramountcy, has been described as the ‘golden thread’[1] running through court decision-making in child welfare cases. The Children Act 1989 (CA)[2] codified this principle, which establishes that the child’s welfare is the ‘paramount consideration’[3] for a court when deciding upon any matter relating to that child’s upbringing, or the administration of their property.
However, it may be contended that the welfare principle is in need of reform, as the principle’s vagueness arguably leads to inconsistencies in its application by the courts. Equally, it may be maintained that the welfare principle negates the rights of parents under the Human Rights Act 1998,[4] by placing the welfare of the child above all else.
Yet, whilst some reform may be beneficial, it is not convincing to argue that reform is an ‘urgent’ necessity. Specifically, the flexibility of the welfare principle is necessary in accommodating fair judgments on a case to case basis, and the principle itself is not necessarily incompatible with the rights of parents. Therefore, these issues will be addressed sequentially, and following this, the matter of reform will be examined.
The Welfare Principle’s Flexibility
Lord MacDermott stated in J v C[5] that the paramountcy principle entails a process in which after the relevant facts, wishes and circumstances are considered, the resulting judgment will be ‘most in the interests of the child’s welfare.’[6] However, there is difficulty in consistently determining what is within a ‘child’s welfare,’ and subsequently in deciding what weight to attach to certain factors when doing so. For example, there is no definitive authority which clarifies if the ‘physical, emotional and educational needs’[7] of a child should be afforded greater consideration than ‘the wishes and feelings of the child concerned.’[8]
Moreover, there is no guideline concerning when a court should regard particular elements of a case when making a section 8 order.[9] Davis and Pearce illustrate this point, by giving the example of an unreported case in which the judge arbitrarily held that a child of seven was too young for her wishes to be taken into account.[10] However, it should be noted that a child’s wishes and concerns are considered in ‘light of his age and understanding.’[11] Hence, it may have been the case that the court could not conclusively discover the feelings of the child due to their immaturity.
Yet, Eekelaar contends that the welfare principle allows for judgments to be driven by ‘untested assumptions about what is good for children.’[12] For example, Neill LJ in Re M (Child’s Upbringing)[13] held that a child should be returned to South Africa to his biological parents, who had been forced to give him up due to South Africa’s political instability in the 1990s. This decision was made irrespective of the fact that removal from his English foster mother would be traumatic. Thus, as Eekelaar suggests, the court’s judgment may have been based solely on ‘sympathy with the plight of the natural parents.’[14]
However, this criticism holds little merit, as it is founded on speculation. In other words, just as it cannot be definitively evidenced that judges remain completely impartial in child welfare cases, it follows that it also cannot be evidenced that judges allow their prejudices to influence their decisions. Thus, this criticism is limited by the lack of empirical evidence supporting it.
Nevertheless, Mnookin argues that the imprecision of the welfare principle leads to delayed proceedings and increased costs.[15] Indeed, if a court is to make a ‘justified’ decision as to what parent a child should live with, the possible outcomes for the child must be considered, as well as the probability of those outcomes. However, this assertion is limited in value, as it is often clear as to the decisive factor behind a court’s decision. Parker supports this notion by giving the example that in cases where one parent has harmed the child, or the other parent, then it is evident that the child should reside with the non-offending parent.[16]
Moreover, the flexibility of the welfare principle allows the courts to reach fair and justified decisions in cases which by nature, are fact sensitive. For example, in Re C (A Child),[17] the Court dismissed a mother’s application for a prohibited steps order with sought to prevent the Christian baptism of her ten-year-old child whilst in the father’s custody. Yet, because the child wished to be baptized, HHJ Platt reasoned that the child’s welfare was best served ‘by allowing her to be enrolled in a baptism class and to present herself for baptism.’[18]
Accordingly, Bevan observes that given the limited authority available to the Court on prohibited steps orders, the flexibility of the welfare principle accommodated a judgment that was ‘respectful and sensitive.’[19] Hence, whilst the welfare principle may be criticised as vague by academics, this very flexibility is required in practical application. As Herring also notes, this flexibility does not necessarily produce uncertainty, as the welfare principle is ‘one of the most accurately understood legal principles among the general public.’[20]
The Rights of Parents
The rationale of the paramountcy principle is perhaps best justified by the doctrine of ‘parens patriae,’[21] which calls for the state to protect vulnerable members of society who cannot protect themselves. However, in Re P (Contact: Supervision),[22] the Court held that it was concerned ‘with the interests of the mother and the father only in so far as they bear on the welfare of the child.’[23]
Therefore, it may be argued that the welfare principle compels reform, as it is too ‘individualistic’[24] in its consideration of the rights of the child. Thus, as Choudhry and Fenwick observe regarding the rights of parents, ‘In many cases, Article 8 remains the dog that fails to bark.’[25]
However, the individuality of the welfare principle does not mean that the rights of parents are not protected in any sense. Indeed, the welfare principle does not infringe upon parents’ rights on a ‘day-to-day’[26] basis, and only applies where a court is deciding upon a matter relating to the child’s welfare. Moreover, a court may only grant a care or supervision order, if the child is likely to suffer, or is suffering significant harm.[27]
Furthermore, it cannot credibly be maintained that the rights of parents are not given any consideration in child welfare cases. For example, in Re T (Wardship: Medical Treatment),[28] Butler-Sloss LJ held that where an infant required a potentially lifesaving liver transplant, that ‘The welfare of the child depends upon his mother.’[29] Hence, because the mother did not consent, the procedure could not be forced.
Yet, it may also be said that this judgment illustrates the potential danger of placing the rights of parents in too privileged of a position in child welfare cases. Indeed, in a case where medical opinion was that the operation was in the child’s best interests, it would appear strange as to why such importance was given to the mother’s wishes. Specifically, it appears unfair that the qualified article 8[30] rights of the parents overruled the child’s absolute right to life.[31] However, it should be noted that the parents were healthcare professionals, and thus were informed as to the complications that the procedure may have. Roch LJ also noted that ‘distress and uncertainties’ would certainly entail if the procedure was ordered.[32]
Nevertheless, the paramountcy principle is not unjustified in placing the rights of children above all else. Principally, this is because by virtue of being young and vulnerable, children should be afforded rights above those that they may have if they were mature and capable adults. This argument is supported by Mason and Steadman’s observation, that children remain a ‘muted group, denied participation in major political and legal systems.’[33]
Therefore, it does not seem overly persuasive to state that ‘urgent’ reform is required. Instead, as has been illustrated, the rights of parents are not always infringed in practice by the paramountcy principle. Equally, the wishes of parents may be granted noteworthy significance in cases which merit such considerations.
Potential Reform
Firstly, Reece claims that the welfare principle should be discarded entirely, and replaced with an agenda that recognises the child as a ‘single participant in a process in which the interests of all the participants count.’[34] However, this proposal is not entirely reasonable, as Reece fails to consider that the participation of the child in judicial proceedings is subject to that child’s ‘intelligence and understanding.’[35]
Put differently, a model which places a child’s rights, regardless of their age, on a level equivalent to the rights afforded to mature adults, is one which does not give adequate consideration to the vulnerability of children. Thus, Reece’s reform is inadequate, as it does not reflect the fact that international human rights law and family law recognises children as, ‘among the most vulnerable members of society.’[36]
Yet, Bainham suggests that the welfare principle should be reformed to classify the interests of parents and children as ‘primary or secondary.’[37] Therefore, the ‘level’ of a parties’ interest would be accounted for in the balancing of rights. This proposed reform bears resemblance to the approach outlined by the UN Convention on the Rights of the Child,[38] which classifies the interests of the child as a ‘primary consideration’[39] as opposed to being paramount.
However, this model is also inappropriate, as Bainham does not elaborate as to what would occur when two primary interests conflict. Moreover, if Bainham aims to remedy the vagueness and alleged uncertainty of the welfare principle through this reform, he may contradict himself by requiring courts to subjectively categorise interests as primary or secondary.
Nevertheless, a more convincing model of reform is Herring’s ‘relationship-based welfare.’[40] This model would entail greater consideration of the interests of parents, whilst not necessarily compromising the rights of children. Specifically, as families are based on mutual co-operation, this would mean that children would not be entitled to require substantial sacrifice from parents in exchange for small benefits.
Moreover, the implementation of this approach may prove beneficial, as it allows the balancing of rights to be viewed as less of a conflict, and more as a mechanism in deciding what the proper relationship is to be imposed by a court. This reform would also allow the courts to give greater effect to the theory that, where possible, children should be raised and cared for within their own families. Indeed, this seems appropriate, as the Government has recently implemented new plans which aim to reduce the number of children taken into care.[41]
However, it may be argued that this approach would cause little difference in practice. This is due to the fact that the rights of the child would still be paramount, and the courts would enjoy discretion as to when the child would not be entitled to compromise the rights of the parents for ‘minor benefits.’[42] Yet, such reform would seem justified as a matter of principle.
Particularly, it is evident that respect must be given to the rights of parents, and thus this approach may further facilitate this in practice. Moreover, this reform may also give effect to Elster’s credible proposal, that whilst the welfare of children should be privileged, the enforcement of a child’s welfare should avoid doing excessive harm to others.[43]
Conclusion
In conclusion, the flexibility of the welfare principle is a necessity, due simply to the sensitive and factually varied nature of child welfare cases. Indeed, it would not seem that this flexibility leads to inconsistencies in application of the welfare principle by the courts, but instead allows for judgments that are fair and justified.
Equally, the welfare principle does not ‘negate’ the rights of parents by assigning the welfare of the child as paramount. Instead, it would be more convincing to argue that the welfare principle does not give effect to the interests of parents to the degree that it perhaps should.
Therefore, whilst urgent reform of the welfare principle is unnecessary, the implementation of a relationship based approach would appear most appropriate. Whether this approach would lead to any difference in case outcome is questionable. However, the implementation of Herring’s suggested model would at least further ensure that the rights and interests of parents are given some reflection in future child welfare cases.
Bibliography
Books
Gilmore S, Glennon L, Hayes And Williams’ Family Law (6th edn, Oxford University Press 2018).
William Macpherson, A Treatise On The Law Relating To Infants (Philadelphia, John S Littell 1843).
Case Law
Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112.
J v C [1970] AC 668.
Re C (A Child) [2012] EW Misc 15 (CC).
Re M (Child's Upbringing) [1996] 2 FLR 441.
Re P (Contact: Supervision) [1996] 2 FLR 314.
Re T (Wardship: Medical Treatment) [1997] 1 FLR 502.
Journal Articles
Bainham A, ‘Non-Intervention and Judicial Paternalism’, in P. Birks (ed), The Frontiers of Liability (Oxford University Press, 1994).
Bevan C, ‘Is Welfare Faring Well? In Praise Of The Welfare Principle: A Case Study From Romford’ (2012) 42 Family Law.
Choudhry S, Fenwick H, ‘Taking the rights of parents and children seriously: confronting the welfare principle under the Human Rights Act’ (2005) 25 Oxford Journal of Legal Studies.
Davis G, Pearce J, ‘The Welfare Principle In Action’ (1999) 29 Family Law.
Eekelaar J, ‘Beyond The Welfare Principle’ (2002) 14 Child and Family Law Quarterly.
Elster J, ‘Solomonic Judgments: Against the Best Interests of the Child’ (1987) 54(1) University of Chicago Law Review 1045.
Herring J, ‘Farewell Welfare?’ (2011) 27 Journal of Social Welfare and Family Law.
Herring J, ‘The Human Rights Act and the welfare principle in family law - conflicting or complementary?’ (1999) 11(3) Child and Family Law Quarterly.
Mason J, Steadman B, ‘The Significance Of The Conceptualisation Of Childhood For Child Protection Policy’ (1997) 46 Family Matters.
Mnookin R, ‘Child-Custody Adjudication: Judicial Functions In The Face Of Indeterminacy’ (1975) 39(3) Law and Commentary Problems.
Parker S, ‘The Best Interests Of The Child: Reconciling Culture And Human Rights’ (1994) 8 International Journal of Law, Policy and the Family.
Reece H, ‘The Paramountcy Principle: Consensus or Construct?’ (1996) 49 Current Legal Problems 267.
Legislation and Other Instruments
Children Act 1989.
Human Rights Act 1998.
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577.
Reports
Baum J, ‘In The Child's Best Interest?: The Consequences Of Losing A Lawful Immigrant Parent To Deportation’ (University of California, Berkeley, School of Law 2010).
Websites and Online Articles
‘New Projects To Strengthen Families And Keep Children Out Of Care’ (GOV.UK, 2019) <https://www.gov.uk/government/news/new-projects-to-strengthen-families-and-keep-children-out-of-care> accessed 28 November 2019.
[1] Stephen Gilmore, Lisa Glennon, Hayes And Williams’ Family Law (6th edn, Oxford University Press 2018), p 464. [2] Children Act 1989. [3] ibid, s 1(1). [4] Human Rights Act 1998, art 8. [5] [1970] AC 668. [6] ibid, p 710-11. [7] Children Act (n 2), s 1(3)(b). [8] ibid, s 1(3)(a). [9] ibid, s 8. [10] Gwynn Davis, Julia Pearce, ‘The Welfare Principle In Action’ (1999) 29 Family Law. [11] Children Act (n 2), s 1(3)(a). [12] John Eekelaar, ‘Beyond The Welfare Principle’ (2002) 14 Child and Family Law Quarterly. [13] [1996] 2 FLR 441. [14] Eekelaar (n 12), p 237. [15] Robert Mnookin, ‘Child-Custody Adjudication: Judicial Functions In The Face Of Indeterminacy’ (1975) 39(3) Law and Commentary Problems, p 226-93. [16] Stephen Parker, ‘The Best Interests Of The Child: Reconciling Culture And Human Rights’ (1994) 8 International Journal of Law, Policy and the Family. [17] [2012] EW Misc 15 (CC). [18] ibid, [64]. [19] Chris Bevan, ‘Is Welfare Faring Well? In Praise Of The Welfare Principle: A Case Study From Romford’ (2012) 42 Family Law, p 1143. [20] Jonathan Herring, ‘Farewell Welfare?’ (2011) 27 Journal of Social Welfare and Family Law, p 168. [21] William Macpherson, A Treatise On The Law Relating To Infants (Philadelphia, John S Littell 1843), p 83. [22] [1996] 2 FLR 314. [23] ibid, p 328. [24] Jonathan Herring, ‘The Human Rights Act and the welfare principle in family law - conflicting or complementary?’ (1999) 11(3) Child and Family Law Quarterly, p 225. [25] Shazia Choudhry, Helen Fenwick, ‘Taking the rights of parents and children seriously: confronting the welfare principle under the Human Rights Act’ (2005) 25 Oxford Journal of Legal Studies, p 454. [26] Herring (n 24). [27] CA (n 2), s 31. [28] [1997] 1 FLR 502. [29] ibid, p 249. [30] HRA (n 4), art 8. [31] HRA (n 4), art 2. [32] Re T (n 28) p 256. [33] Jan Mason, Bronwyn Steadman, ‘The Significance Of The Conceptualisation Of Childhood For Child Protection Policy’ (1997) 46 Family Matters, p 31. [34] Helen Reece, ‘The Paramountcy Principle: Consensus or Construct?’ (1996) 49 Current Legal Problems 267, p 303. [35] Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112, p 186. [36] Jonathan Baum, ‘In The Child's Best Interest?: The Consequences Of Losing A Lawful Immigrant Parent To Deportation’ (University of California, Berkeley, School of Law 2010), p 36. [37] Andrew Bainham, ‘Non-Intervention and Judicial Paternalism’, in P. Birks (ed), The Frontiers of Liability (Oxford University Press, 1994). [38] UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577. [39] ibid, art 3. [40] Herring (n 24), p 233. [41] ‘New Projects To Strengthen Families And Keep Children Out Of Care’ (GOV.UK, 2019) <https://www.gov.uk/government/news/new-projects-to-strengthen-families-and-keep-children-out-of-care> accessed 28 November 2019. [42] Herring (n 24), p 233. [43] Jon Elster, ‘Solomonic Judgments: Against the Best Interests of the Child’ (1987) 54(1) University of Chicago Law Review 1045.