Children's Welfare Notes

What is the paramountcy principle?

• Principle is enshrined in s 1(1) of the Children Act: the welfare of the child is to be considered paramount by the court when determining matters relating to the child’s upbringing

• Seminal decision on interpreting the principle is J v C: paramount is defined in terms of being ‘overriding’ by Lord MacDermott after all things are considered and weighed; the course of action to follow is the one that is in the interest of the child’s welfare

• In other words, the child’s welfare is a trump card (ie. children’s interests matter more than others)

There is widespread consensus as to the utility of the paramoutncy principle:

• Author argues that the principle despite resting on shaky theoretical grounds, attracts a solid consensus (ie. has been described as the heart/bedrock of the Children Act)

• It is considered so widely accepted that debate concerns areas in which the principle hasn’t been applied (cf. whether or not the principle is appropriate in the first place)

• Criticisms of the principle concern it’s application as opposed to it’s theoretical basis

Criticisms of the principle:

• Indeterminacy: the main criticism of the principle relates to difficulties in its application ie. although there is widespread agreement that the principle should be paramount, there is no consensus as to what the welfare of the child demands (what is the definition of the child’s best interests; who decides?)

• Value-laden: criticisms also relate to the application of the principle by judges, arguing that the decisions made are value-laden (EG. May v May: the father was stricter in his parenting style than the carefree approach of the mother and he was granted custody)

• Subjectivity: decisions are made on the subjective beliefs and values of individual decision-makers

• *Note: the fact that there are so many criticisms of the principle reinforces its legitimacy ie. it is still accepted despite widespread criticism, suggesting the theoretical underpinnings of the principle are unrivalled

• Interesting to note that those who do argue for repeal of the principle argue from within the confined of best interests (eg. Fineman argues that the principle should be replaced with a predictable primary caretaker rule because this would truly serve the best interests of the child)

• Reece argues that anyone who is arguing for a repeal of the principle but is arguing from the best interest standpoint is actually arguing for a reformulation of the principle rather than a repeal

What are the justifications for the principle?

• Children have the right to have their welfare prioritized:

• Utilitarian argument which assumes that children have special rights (outside of human rights) and that they have a special right to be prioritized in terms of welfare

• Reece rejects this by saying even if children do have special rights, they wouldn’t have a special right to have their welfare prioritized and the argument fails in assuming this special position of children

• The vulnerability of children demands special protection form adults:

• Reece argues the child in the specific case might not be the most vulnerable individual

• Argues that this argument is a fallacy (despite explaining the consensus) as it equates priority with protection ie. just because children may need protection this doesn’t mean their welfare should be prioritized and weakening the priority of children’s interests doesn’t necessarily equate to a weakening of protection

• Children need to be given the opportunity to become successful adults:

• Reece argues this a self-defeating argument (ie. why become a successful adult if your interests will be subordinated to those of children) (*questionable)

• Argues that this line of thinking makes the importance of childhood contingent on the importance of adulthood and promotes the future at the expense of the present (*questionable)

• Adults create children:

• It is not self-evident that children are more important than adults just because they are created by adults and many religions believe the reverse to be true

• Argument from Solomon:

• A desire to make sacrifices for your children is the mark of parenthood

• Utilitarian arguments:

• Prioritising children’s interests builds a good nation for the future (ie. good for society)

Inadequacy of any justification based on childhood or the concept of children

• Reece argues all of the above justifications are inadequate to rationalize use of the paramountcy principle

• The reason for this is bc of the narrowness with which the court’s have applied the principle to the individual child in the courtroom

• Uses case examples where both mother and child are ‘children’ for the purposes of the Act in order to show how narrow the principle has been construed

• The question in these cases of whose interests were to be...