Vardags Family Law Essay competition 2024/25 | Rithiga Rahulotchanan

Rithiga Rahulotchanan - University of Law

The approach of the courts to the welfare principle in cases of private law disputes over children

Described as “the golden thread that runs through court-decision making in children’s cases”(1), the welfare principle establishes that “the child’s welfare shall be the court’s paramount consideration” in cases of private law disputes over children.(2) However, the courts’ application of the principle has been widely criticised, as academics argue that the vagueness of the principle leads to its inconsistent application by the courts. It is also contended that the courts’ prioritisation of the child’s welfare above the rights of the parents is incompatible with the parents’ right to respect for family life under Article 8 of the Human Rights Act 1998 (‘HRA’). Therefore, this essay will examine the application of the principle by the courts, ultimately taking the position that legal reform is required to ensure greater consistency and fairness in decisions made by the court in private law disputes over children.

The courts’ approach to the flexibility of the principle

It could be argued that the approach of the courts to the vagueness of the welfare principle and its associated flexibility has led to indeterminacy surrounding the principle, resulting in inconsistencies in its application. The welfare principle applies to cases in which the court must determine any issue involving the child’s upbringing or the administration of his property. In Re X (a child) (injunctions restraining publications) (3), the court defined “upbringing” as “the bringing up, care for, treatment, education, and instruction of the child by its parents or by those who are substitute parents”. In Richards v Richards (4), the court further limited the application of the principle, stating that the child’s welfare is only paramount if the child’s upbringing is directly in issue, suggesting that the approach of the courts to the principle is restricted and structured. Additionally, the welfare principle does not apply where another statutory provision expressly or impliedly excludes its operation, further demonstrating the restrictions imposed on the courts whilst applying the principle.

However, in Re McGrath (Infants) (5), the court decided that the word “welfare” should be used in its widest sense. Furthermore, more recently, the courts held that “welfare” extends to everything relating to the child’s development, the child’s present and the child’s future life as a human being.(6) Therefore, case law suggests that the courts have adopted a more flexible approach to the welfare principle to ensure fairer outcomes depending on the facts of individual cases. Taylor contends that this approach is welcome due to the extent of consideration it gives to every aspect of the child’s life; however, it creates a “daunting task for the judge” and highlights the indeterminacy surrounding welfare decision-making.(7) Mnookin further argues that the imprecision of the welfare principle leads to delayed proceedings and increased costs.(8) Herring shares this perspective, also arguing that the principle leads to too much uncertainty, resulting in increased delays and litigations.(9) However, Herring suggests that the welfare principle is “one of the most accurately understood legal principles among the general public”, implying that the principle does not necessarily produce uncertainty. It could be argued that the flexibility afforded by the principle provides a guide for the courts, rather than specifying a particular outcome, allowing the courts to accommodate for changes over time of accepted notions of child welfare following social change.(10) For example, in C v C (A Minor) (Custody: Appeal) (11), in a dispute over the child’s residence, the Court of Appeal held that the mother’s homosexual relationship was an important factor to consider. Reece notes that although this judgment was never formally overturned, family law commentators agree that this precedent would no longer be followed, demonstrating how the flexibility of the principle allows for fairer judgments in light of changing social norms, preventing the stigmatisation of certain parents.(12)

Due to the wide discretion granted to the courts by the welfare principle, the welfare checklist contained in Article 3(3) of the Children (NI) Order 1995 has been designed to ensure the court consciously weighs every factor which it ought to consider regarding Article 8 orders, leading to balanced decisions. Re G (Children) (Residence: Same-Sex Partner) summarises the approach of the courts to the checklist, stating that the consideration of each of the factors on the list ensures no feature of the case is given greater weight that it should bear, suggesting that there is a degree of structure given to the courts’ approach, allowing for predictable and consistent judgments to an extent. Despite this, Mnookin advocates for an entirely rules-based approach, noting that it is difficult to predict the outcome of cases due to the flexibility of the principle.(13) Therefore, it could ultimately be argued that although the level of flexibility given to the courts regarding the application of the principle serves a practical purpose in ensuring tailored judgments in private law disputes over children, it also creates inconsistencies in the courts’ application of it, thus legal reform may be considered.

The courts’ use of presumptions whilst applying the ‘welfare checklist’

It could be argued that the use of presumptions by the court whilst applying the ‘welfare checklist’ undermines the purpose of the principle, leading to unfair judgments. As mentioned above, when a court makes, varies or discharges an Article 8 order, it must consider the welfare checklist in Article 3(3). The checklist aims to provide a legal framework which promotes a consistent approach by the court in considering and adjudicating on it; however, academics contend that the courts’ accompanying use of presumptions restricts the operation of the welfare principle. For example, in Re H (A minor) (Custody Interim Care and Control) (14), the Court of Appeal held that the welfare principle should be applied with “a strong supposition” that it is in the interests of the child to remain with their natural parents, however, the specific needs of the situation should be considered. The court’s approach in this case demonstrates the influence of the presumption in favour of the child’s natural parents. The court’s judgment in Re K (a Minor) (Ward: Care and Control) (15) also expressed a preference in favour of the natural parent. However, Re H (a Minor) (Custody: Interim Care and Control) [1991] 2 FLR 109 asserted the view that the natural parent presumption is about welfare, suggesting that the operation of presumptions in the application of the principle does not undermine its purpose, but rather supports it. It could also be argued that the courts’ use of presumptions with regards to the application of the welfare principle promotes certainty due to the structure it provides.

However, Herring asserts that the welfare principle should be applied without the pollution of presumptions.(16) Recent case law has also criticised the use of presumptions and urged the courts to simply consider the child’s welfare, as demonstrated in Re B (A Child) (17). In this case, the Supreme Court rejected the notion that a child has the right to be raised by their biological parent; instead, the paramount consideration must be the child’s best interests, reaffirming the idea that natural parenthood only assumes any significance in terms of its contribution to the child’s welfare. Supporting this stance, Fortin notes that excessive emphasis is placed on the natural parent assumption, preventing the courts from making a fair assessment of the child’s psychological needs and rights.(18) Therefore, it could be argued that by applying such presumptions, the courts may unintentionally stigmatise certain living environments (19); however, case law indicates that the focus of the courts is on the practical consequences of parental behaviour for the child, thus the courts avoid making judgments about the lifestyle of the parents.

Overall, it could be argued that the recent approach of the courts is correct; the use of presumptions should be avoided and the focus should remain on the welfare of the child.

The courts’ approach to the Human rights act 1998

In their approach to the welfare principle, the courts arguably give little regard to the compatibility of the principle with the requirements of the HRA, unfairly disadvantaging certain groups. By placing the child’s welfare above all else, it could be argued that the courts’ application of the welfare principle negates the qualified right of parents to respect for private and family life, the home and correspondence under Article 8 of the European Convention on Human Rights (‘ECHR’), potentially giving rise to human rights concerns.

Unlike UK courts, the European Court of Human Rights seeks to balance the rights of different family members, acknowledging individual rights. For example, Johansen v Norway (20) established that in cases of private law disputes over children, the court will prioritise the best interests of the child, which may override the best interests of the parent, demonstrating the courts’ lack of regard for individual rights. Likewise, in Re S (Contact: Promoting Relationship with Absent Parent) (21), the court held that in cases where the Article 8 rights of the parents and those of the child are at stake, the rights of the child must be the paramount consideration. Therefore, it appears that the courts are of the opinion that an order that benefits the child should be made regardless of the sacrifices which must be made by the parents. This approach arguably demonstrates significant resistance to the HRA in the context of disputes regarding children.(22)

Choudhry and Fenwick’s assertion that there is increasing resistance to the ECHR could be rebutted by the approach of the courts in other cases in which it is argued that the welfare principle is in fact complementary to the ECHR. In Re KD (A Minor) (Ward: Terminating Access) (23), it was held that any difference between the requirements of Article 8 of the ECHR and Section 1 of the Children’s Act 1989 is merely semantic, contending that neither inconsistencies of principle nor application exist between English rule and Convention rule. However, Herring argues that Article 8 of the ECHR and Article 3(3) of the Children (NI) Order 1995 do not express the same thing in a different manner, because unlike the welfare principle, the convention requires the court to consider the interests of the parents which do not directly affect the child’s welfare suggesting that there is a noteworthy disparity between UK legislation and the ECHR.(24)

By displacing the notion of individual rights, it could be argued that the courts are paradoxically elevating the rights of the mother above the rights of the father, contradicting the assertion of Gilmore and Glennon that the welfare principle emerged as “a by-product of the struggle to equalise the legal positions of mothers and fathers”.(25) The courts’ approach to the principle arguably places emphasis on the natural bond between mother and child (26), thus the premise established by the welfare principle could be harmful from a feminist perspective.(27) Choudhry and Fenwick argue that the courts’ approach to the principle legitimises a “pecking order” within which the interests of the non-resident parent, more often the father’s, are unlikely to prevail, thus the application of the welfare principle supports a particular conception of fatherhood and motherhood that is fundamentally anti-feminist.(28)

Therefore, considering the courts’ current approach to the welfare principle in light of human rights jurisprudence and gender equality concerns, a degree of reformulation of the welfare principle may be required.

Conclusion

Ultimately, it can be concluded that although the courts’ current approach to the welfare principle regarding its flexibility, its associated presumptions and its compatibility with the HRA allows for fair outcomes on a case-by-case basis, legal reform is required to ensure the courts’ consistent and transparent application of the principle in private law disputes over children. However, presumptions are used to restrict the flexibility of the welfare principle (29), as they are focussed on external interests, such as the rights of parents. Arguably, this ensures that state interests are not readily overridden under the guise of child welfare by the court, thus it could be argued that the three issues associated with the courts’ application of the principle identified in this essay work together to uphold the rationale behind the welfare principle.

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Bibliography

(1) Stephen Gilmore, Lisa Glennon, Hayes and Williams’ Family Law (6th edn, Oxford University Press 2018), p 464

(2) The Children (Northern Ireland) Order 1995, art 3(1)

(3) [2001] 1 FCR 541

(4) [1984] AC 174

(5) [1893] 1 Ch 143

(6) Re G (Education: Religious Upbringing) [2012] EWCA Civ 123

(7) Taylor, ‘Secular Values and Sacred Rights: Re G (Education: Religious Upbringing) [2013] Child and Family Law Quarterly 336

(8) Mnookin, ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226-293

(9) Herring, “Farewell welfare?’ (2005) 27(2) Journal of Social Welfare and Family Law, 27(2) 159-171

(10) N1

(11) 1 [1991] 1 FLR 223

(12) Reece, ‘A bias for balance, in the best interests of the child’ (2016) Child and Family Law Quarterly

(13) Mnookin, ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226-293

(14) 4 [1991] 2 FLR 109

(15) [1990] 1 WLR 431

(16) Herring, ‘The welfare principle and the children act: presumably it’s about welfare?’ (2014) 36(1) Journal of Social Welfare and Family Law 14-25

(17) [2009] UKSC 5

(18) Fortin, ‘Accommodating children’s rights in a post Human Rights Act era’ (2006) 69(3) The modern law review 299-326

(19) N11

(20) (1996) 23 EHRR 33

(21) [2004] EWCA Civ 166

(22) 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

(23) [1988] AC 806

(24) Herring, ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ (1999) 11(3) Child and Family Law Quarterly 223

(25) N1, p507

(26) N7

(27) Smart, ’The Legal and Moral Ordering of Child Custody’ (1991) 18 J. of Law and Society 485-500

(28) N6, p464

(29) Herring and Powell, ‘The rise and fall of presumptions surrounding the welfare principle’ (2013) 43(5) Family law 553-558

Cases

C v C (A Minor) (Custody: Appeal) [1991] 1 FLR 223

Johansen v Norway (1996) 23 EHRR 33

Re B (A Child) [2009] UKSC 5

Re G (Children) (Residence: Same-Sex Partner) [1991] 1 FLR 223

Re G (Education: Religious Upbringing) [2012] EWCA Civ 123

Re H (A minor) (Custody Interim Care and Control) [1991] 2 FLR 109

Re H (a Minor) (Custody: Interim Care and Control) [1991] 2 FLR 109

Re K (a Minor) (Ward: Care and Control) [1990] 1 WLR 431

Re KD (A Minor) (Ward: Terminating Access) [1988] AC 806

Re McGrath (Infants) [1893] 1 Ch 143 Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 166

Re X (a child) (injunctions restraining publications) [2001] 1 FCR 541 Richards v Richards [1984] AC 174

Legislation

European Convention on Human Rights

The Children (Northern Ireland) Order 1995

The Human Rights Act 1998

Journal Articles

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

Herring and Powell, ‘The rise and fall of presumptions surrounding the welfare principle’ (2013) 43(5) Family law 553-558

Herring, ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ (1999) 11(3) Child and Family Law Quarterly 223

Mnookin, ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226-293

Mnookin, ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226-293

Reece, ‘A bias for balance, in the best interests of the child’ (2016) Child and Family Law Quarterly

Smart, ’The Legal and Moral Ordering of Child Custody’ (1991) 18 J. of Law and Society 485-500

Stephen Gilmore, Lisa Glennon, Hayes and Williams’ Family Law (6th edn, Oxford University Press 2018), p 464

Taylor, ‘Secular Values and Sacred Rights: Re G (Education: Religious Upbringing) [2013] Child and Family Law Quarterly 336

Books

Herring, “Farewell welfare?’ (2005) 27(2) Journal of Social Welfare and Family Law, 27(2) 159-171