‘Is the welfare principle in need of urgent reform?

The welfare principle, or the principle of paramountcy, has been described as the
‘golden thread’ running through court decision-making in child welfare cases. The
Children Act 1989 (CA) codified this principle, which establishes that the child’s
welfare is the ‘paramount consideration’ 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, 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 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.’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’ of a child should be afforded greater consideration than ‘the
wishes and feelings of the child concerned.’

Moreover, there is no guideline concerning when a court should regard particular

elements of a case when making a section 8 order.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.However, it should be noted that a child’s wishes and concerns are
considered in ‘light of his age and understanding.’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.’For example, Neill LJ in Re
M (Child’s Upbringing) 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.’
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.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.

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.’

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.’ 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.’

The Rights of Parents

The rationale of the paramountcy principle is perhaps best justified by the doctrine
of ‘parens patriae,’ which calls for the state to protect vulnerable members of
society who cannot protect themselves. However, in Re P (Contact: Supervision), 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.’
Therefore, it may be argued that the welfare principle compels reform, as it is too
‘individualistic 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.’

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’ 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. 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), Butler-Sloss LJ held that where an infant required a
potentially lifesaving liver transplant, that ‘The welfare of the child depends upon his
mother.’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 rights of the parents
overruled the child’s absolute right to life.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.

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.’

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.’ 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.’
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.’

Yet, Bainham suggests that the welfare principle should be reformed to classify the
interests of parents and children as ‘primary or secondary.’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,which classifies the interests of the child as a ‘primary
consideration’ 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.’ 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.

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.’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.

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.