BCL Law Notes Children, Families & the State Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making the...
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PROVISIONS | ||
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Children’s Act 1989 | Section 1 | When a court determines any question with respect to— (a) the upbringing of a child; the child’s welfare shall be the court’s paramount consideration. J v C (Lord MacDermott): Paramountcy principle: “A process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare” |
WELFARE-BASED APPROACH | RIGHTS -BASED APPROACH | |
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Motivation / Rationale | To protect children and promote their best interests — concern that children’s interests often overlooked Emphasises vulnerability of children and dependence on adults | To reject paternalism (assumption that adults know what is best for children) Emphasises capacity of children for self-determination and independence |
Differences: Conceptual | (1) As articulated under section 1 Children Act: child’s interests are the sole consideration
(2) Requires courts or parents (or other guardians ) to determine what the child’s interests are (3) Imposes no obligations (4) Potential danger of allowing parents’ interests to be smuggled in indirectly behind the “smokescreen” of welfare (5) Expressive function of welfare message: “You have a responsibility for your child’s welfare” | (1) Child’s rights and interests are not sole consideration
(2) Seeks to promote interests of child as child sees them (or would see them were they capable) — when child is competent, primary decision-maker is the child (3) Existence of rights implies the existence of concomitant duties (ie. child can make claims against court or parents) (4) Explicitly and openly knowledges that parents have rights and requires reasoned consideration as to why these rights are either upheld or interfered with (5) Expressive function of rights message: “You have rights” (6) Rights that cannot necessarily be demonstrated to promote welfare (eg. right to know about genetic origins) |
Theoretical Perspectives on Children’s Welfare — Academic Commentary | |
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*Reece 1996 | Argument: Attack on paramountcy principle illustrated through caselaw on presumption against same-sex parenting (1) Rejects key justifications given for the paramountcy principle:
(2) Emphasises narrowness of principle: focuses on welfare of a particular child(ren) directly in the court’s view (3) Application of principle potentially harmful — allows other policies/principles to smuggle themselves into children’s cases
(4) Principle contributes to the creation of a more repressive society:
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*Herring and Foster (2005) (2012) | NOTING that:
Argument: Defence of welfare principle based on a relationship-based approach — best interests should be understood to recognise importance of relational interests, performance of obligations, and virtue of altruism to human flourishing, and thus well-being (1) Behind judicial determinations of ‘welfare’ lies an Aristotelian notion of the ‘good life’
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Buy the full version of these notes or essay plans and more in our Children, Families & the State Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making the...
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