Fundamental Principles of Child Law
Issues and matters for How do the paramountcy principle, the non-interventon principle and the Human
consideraton when Rights Act work together?
reading:
Children’s autonomy and rights when important decisions need to be made about
their lives, and when what the court deems to be in their best interests clash with
their wishes and feelings (in the context of medical care, for example).
The origins of the Children Act 1989, the infuence of Gillick and Cleveland.
The public-private dichotomy. The welfare principle versus the principle of non-
interventon.
To what extent should children be able to partcipate in decision making on issues
pertaining to their welfare?
How did we come from ‘children as property’ and paternal rights to parental
responsibility?
The Welfare Principle
The Paramountcy of the - Central to the resoluton of child-related disputes under English Law
Child’s Welfare - Enshrined in
- the s1 of CA 1989
“When a court determines any queston
with respect to –
(a) the upbringing of a child; or
(b) the administraton of a child’s
property or the applicaton of any
income arising from it,
the child’s welfare shall be the court’s
paramount consideraton..
Note: Welfare is not defned in
statute. Only refected in the form
of a welfare checklist.
- s1 of the Adopton and Children Act 2002
- Means that whenever a court determines any questons relatng to
- the upbringing of a child,
- whether concerning adopton,
- living arrangements afer parental separaton
- medical treatment
- or taking a child into state care,
- the child’s welfare must be the paramount consideraton
Meaning of ‘Paramount’ - In J v C, HoL had to interpret ‘paramount’ as then found in s1 of the
Guardianship of Infants Act 1925
- Lord MacDermott
- Ordinary signifcance
1
, - Mean more than the child’s welfare is to be
treated as the top item in a list of items
relevant to the matter in queston
- Rather, a process whereby, when all relevant facts, r/s,
claims and wishes of parents, risks, choices and other
circumstances are taken into account and weighed
- Course to be followed will be that which is
most in the interests of the child’s welfare
- Widely accepted that ‘paramount’ means that the facts are relevant to
the court when determining any aspect of the child’s upbringing
- Only if and insofar as they afect the child’s welfare in some
ways
- Child’s welfare is thus determinatve
- With other potentally relevant factors, such
as
- Wishes and feelings of the child’s
parents
- Taken into account only insofar as they have a
bearing upon the best interests of the child
- Sometmes said that this approach means that the child is being viewed in
isolaton from his or her family (Herring, 1999)
- That welfare is the ‘single deciding factor’ (Choudry and Fenwick, 2005)
- However, can also be said that ‘welfare’ is not in itself a factor
- Deciding what is in the child’s best interests requires an analysis
of many factors
- Consequently, saying that certain factors (such as parent’s rights
or wishes) are relevant only in their bearing on the child’s
welfare does not necessarily undermine their importance
- Whenever a decision requires that many consideratons be taken into
account, each one of those factors may appear to be subordinate to the
fnal decision
- That does not necessarily mean that they are unimportant or
given inadequate weight in the process (George, 2015)
Meaning of ‘Welfare’ - Substantve content
- Both CA 1989 and ACA 2002 contain a ‘checklist’ of factors that
the judge should take into account when trying to determine the
welfare of any partcular child
- s1(3) of CA 1989
- Applicaton of Checklist mandatory only in
circumstances specifed in s1(() of CA
- A contested applicaton to make, vary or
discharge a s8 order
- An applicaton to make, vary or discharge a
- special guardianship order or an order under
Part IV of the Act (i.e. care and supervision
orders), whether contested or not
- Similar checklist applied in the context of adopton set out in
s1(() of ACA 2002
- Sets out relevant factors in a value-neutral way
- Telling the court what to think about
- But give no guidance about the relevance that each factor will
have to the decision
- On the other hand, the parental involvement provision in s1(2A) directs
the courts to presume that it will be in the child’s interests for each
parent to be involved in the child’s life
- Though the form of involvement is lef upon
- Unless there is evidence to show that the parent cannot be involved
without putng the child at risk
2
, - Courts have interpreted the concept of the child’s ‘welfare’ or ‘best
interests’ broadly
- Munby LJ’s Judgment in Re G (Education: Religious Upbringing)
- Synonymous with ‘well-being’ and ‘interests’
- Extends to and embraces everything that relates to the
child’s development as a human being and to the child’s
present and future life as a human being
- Judge must consider welfare now, throughout
the remainder of the child’s minority and into
and through adulthood
- Evaluatng best interests involves a welfare appraisal in
the widest sense
- Ethical, social, moral, religious, cultural,
emotonal and welfare consideratons
- Adopt a holistc approach
- Case is important for the CA.s discussion of other elements
relatng to the understanding of welfare
- E.g. Clear from judgment that our understanding of
welfare has to keep pace with changing ideas in society
- New understanding of science and tech
- Or simply based on changes to social attudes
(Taylor, 2013)
- Munby linked his reference to child’s happiness to the
Aristotelian noton of ‘the good life’
- Not about hedonistc pleasure
- But rather ‘such things as the cultvaton of virtues and
the achievement of worthwhile goals’
- Emphasised that children’s welfare cannot be assessed in
isolaton
- Because child’s relatonships with others are usual
- (Re Y [201(]) ‘A child’s relatonships, both
within and without the family, are always
relevant to the child’s interests; ofen they will
be determinatve’
Welfare Checklist
Children Act 1989, s 1(3)
and Parental
Involvement Clauses
(a) the ascertainable wishes and
feelings of the child concerned (considered
in the light of his age and understanding);
(b) his physical, emotonal and
educatonal needs;
(c) the likely efect on him of any
change in his circumstances;
(d) his age, sex, background and any
characteristcs of his which the court
considers relevant;
(e) any harm which he has sufered
or is at risk of sufering;
(f) how capable each of his parents,
and any other person in relaton to whom
the court considers the queston to be
relevant, is of meetng his needs;
(g) the range of powers available to
the court under this Act in the proceedings
in queston.
3
, Children Act 1989, s 1 (inserted by CFA
2014)
(2A) A court . . . is as respects each
parent within subsecton (6)(a) to presume,
unless the contrary is shown, that
involvement of that parent in the life of
the child concerned will further the child’s
welfare.
(2B) In subsecton (2A) “involvement.
means involvement of some kind, either
direct or indirect, but not any partcular
division of a child’s tme.
When will the welfare Limitatons
principle apply? ‘When a court determines any questons’
- Mandate in s1 of CA 1989 only directed at courts
- Does not apply to any other decision making body, public or
private, exercising power and responsibility over children
- Parents’ liberty to prioritse other needs and interests
in ordinary course of family life unafected
- Local authorites taking decisions wrt ‘looked afer
children’ do not need to prioritse the best interests of
any individual child
- Can take into account their own
consideratons incl limited fnancial resources
- Makes the applicaton of welfare principle narrower than
envisaged in Art 3(1) of the UN Conventon on the Rights of the
Child
- However, UNCRC’s ‘trade-of’ for such broad
obligaton of welfare principle, extending even to
private insttutons, is that the obligaton imposed on
the state authorites is signifcantly weakened
- Welfare of the child is only a primary as
opposed to the paramount consideraton
- Allows the decision maker to take into
account a wide range of factors other than the
partcular interests of the child
- Importance of Art 3 discussed by Lady Hale in ZH
(Tanzania) v SoS for HD
- Immigraton case
- Paramountcy principle in the CA 1989 did not
apply
- In Neulinger v Switzerland, Court
observed that ‘the Conventon
cannot be interpreted in a vacuum
but must be interpreted with the
general principles of internatonal
law’
- Account should take note in
partcular the rules concerning the
internatonal protecton of human
rights
- Court notes there is a broad
consensus - incl in intl law - in
support of best interests of children
must be paramount in concerned
decisions
4
Issues and matters for How do the paramountcy principle, the non-interventon principle and the Human
consideraton when Rights Act work together?
reading:
Children’s autonomy and rights when important decisions need to be made about
their lives, and when what the court deems to be in their best interests clash with
their wishes and feelings (in the context of medical care, for example).
The origins of the Children Act 1989, the infuence of Gillick and Cleveland.
The public-private dichotomy. The welfare principle versus the principle of non-
interventon.
To what extent should children be able to partcipate in decision making on issues
pertaining to their welfare?
How did we come from ‘children as property’ and paternal rights to parental
responsibility?
The Welfare Principle
The Paramountcy of the - Central to the resoluton of child-related disputes under English Law
Child’s Welfare - Enshrined in
- the s1 of CA 1989
“When a court determines any queston
with respect to –
(a) the upbringing of a child; or
(b) the administraton of a child’s
property or the applicaton of any
income arising from it,
the child’s welfare shall be the court’s
paramount consideraton..
Note: Welfare is not defned in
statute. Only refected in the form
of a welfare checklist.
- s1 of the Adopton and Children Act 2002
- Means that whenever a court determines any questons relatng to
- the upbringing of a child,
- whether concerning adopton,
- living arrangements afer parental separaton
- medical treatment
- or taking a child into state care,
- the child’s welfare must be the paramount consideraton
Meaning of ‘Paramount’ - In J v C, HoL had to interpret ‘paramount’ as then found in s1 of the
Guardianship of Infants Act 1925
- Lord MacDermott
- Ordinary signifcance
1
, - Mean more than the child’s welfare is to be
treated as the top item in a list of items
relevant to the matter in queston
- Rather, a process whereby, when all relevant facts, r/s,
claims and wishes of parents, risks, choices and other
circumstances are taken into account and weighed
- Course to be followed will be that which is
most in the interests of the child’s welfare
- Widely accepted that ‘paramount’ means that the facts are relevant to
the court when determining any aspect of the child’s upbringing
- Only if and insofar as they afect the child’s welfare in some
ways
- Child’s welfare is thus determinatve
- With other potentally relevant factors, such
as
- Wishes and feelings of the child’s
parents
- Taken into account only insofar as they have a
bearing upon the best interests of the child
- Sometmes said that this approach means that the child is being viewed in
isolaton from his or her family (Herring, 1999)
- That welfare is the ‘single deciding factor’ (Choudry and Fenwick, 2005)
- However, can also be said that ‘welfare’ is not in itself a factor
- Deciding what is in the child’s best interests requires an analysis
of many factors
- Consequently, saying that certain factors (such as parent’s rights
or wishes) are relevant only in their bearing on the child’s
welfare does not necessarily undermine their importance
- Whenever a decision requires that many consideratons be taken into
account, each one of those factors may appear to be subordinate to the
fnal decision
- That does not necessarily mean that they are unimportant or
given inadequate weight in the process (George, 2015)
Meaning of ‘Welfare’ - Substantve content
- Both CA 1989 and ACA 2002 contain a ‘checklist’ of factors that
the judge should take into account when trying to determine the
welfare of any partcular child
- s1(3) of CA 1989
- Applicaton of Checklist mandatory only in
circumstances specifed in s1(() of CA
- A contested applicaton to make, vary or
discharge a s8 order
- An applicaton to make, vary or discharge a
- special guardianship order or an order under
Part IV of the Act (i.e. care and supervision
orders), whether contested or not
- Similar checklist applied in the context of adopton set out in
s1(() of ACA 2002
- Sets out relevant factors in a value-neutral way
- Telling the court what to think about
- But give no guidance about the relevance that each factor will
have to the decision
- On the other hand, the parental involvement provision in s1(2A) directs
the courts to presume that it will be in the child’s interests for each
parent to be involved in the child’s life
- Though the form of involvement is lef upon
- Unless there is evidence to show that the parent cannot be involved
without putng the child at risk
2
, - Courts have interpreted the concept of the child’s ‘welfare’ or ‘best
interests’ broadly
- Munby LJ’s Judgment in Re G (Education: Religious Upbringing)
- Synonymous with ‘well-being’ and ‘interests’
- Extends to and embraces everything that relates to the
child’s development as a human being and to the child’s
present and future life as a human being
- Judge must consider welfare now, throughout
the remainder of the child’s minority and into
and through adulthood
- Evaluatng best interests involves a welfare appraisal in
the widest sense
- Ethical, social, moral, religious, cultural,
emotonal and welfare consideratons
- Adopt a holistc approach
- Case is important for the CA.s discussion of other elements
relatng to the understanding of welfare
- E.g. Clear from judgment that our understanding of
welfare has to keep pace with changing ideas in society
- New understanding of science and tech
- Or simply based on changes to social attudes
(Taylor, 2013)
- Munby linked his reference to child’s happiness to the
Aristotelian noton of ‘the good life’
- Not about hedonistc pleasure
- But rather ‘such things as the cultvaton of virtues and
the achievement of worthwhile goals’
- Emphasised that children’s welfare cannot be assessed in
isolaton
- Because child’s relatonships with others are usual
- (Re Y [201(]) ‘A child’s relatonships, both
within and without the family, are always
relevant to the child’s interests; ofen they will
be determinatve’
Welfare Checklist
Children Act 1989, s 1(3)
and Parental
Involvement Clauses
(a) the ascertainable wishes and
feelings of the child concerned (considered
in the light of his age and understanding);
(b) his physical, emotonal and
educatonal needs;
(c) the likely efect on him of any
change in his circumstances;
(d) his age, sex, background and any
characteristcs of his which the court
considers relevant;
(e) any harm which he has sufered
or is at risk of sufering;
(f) how capable each of his parents,
and any other person in relaton to whom
the court considers the queston to be
relevant, is of meetng his needs;
(g) the range of powers available to
the court under this Act in the proceedings
in queston.
3
, Children Act 1989, s 1 (inserted by CFA
2014)
(2A) A court . . . is as respects each
parent within subsecton (6)(a) to presume,
unless the contrary is shown, that
involvement of that parent in the life of
the child concerned will further the child’s
welfare.
(2B) In subsecton (2A) “involvement.
means involvement of some kind, either
direct or indirect, but not any partcular
division of a child’s tme.
When will the welfare Limitatons
principle apply? ‘When a court determines any questons’
- Mandate in s1 of CA 1989 only directed at courts
- Does not apply to any other decision making body, public or
private, exercising power and responsibility over children
- Parents’ liberty to prioritse other needs and interests
in ordinary course of family life unafected
- Local authorites taking decisions wrt ‘looked afer
children’ do not need to prioritse the best interests of
any individual child
- Can take into account their own
consideratons incl limited fnancial resources
- Makes the applicaton of welfare principle narrower than
envisaged in Art 3(1) of the UN Conventon on the Rights of the
Child
- However, UNCRC’s ‘trade-of’ for such broad
obligaton of welfare principle, extending even to
private insttutons, is that the obligaton imposed on
the state authorites is signifcantly weakened
- Welfare of the child is only a primary as
opposed to the paramount consideraton
- Allows the decision maker to take into
account a wide range of factors other than the
partcular interests of the child
- Importance of Art 3 discussed by Lady Hale in ZH
(Tanzania) v SoS for HD
- Immigraton case
- Paramountcy principle in the CA 1989 did not
apply
- In Neulinger v Switzerland, Court
observed that ‘the Conventon
cannot be interpreted in a vacuum
but must be interpreted with the
general principles of internatonal
law’
- Account should take note in
partcular the rules concerning the
internatonal protecton of human
rights
- Court notes there is a broad
consensus - incl in intl law - in
support of best interests of children
must be paramount in concerned
decisions
4
