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Children's Welfare Notes

BCL Law Notes > Children, Families & the State Notes

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3: CHILDREN'S WELFARE AND WELLBEING (i) THEORETICAL PERSPECTIVES Reece: The Paramountcy Principle - Consensus or Construct?
? Summary: author argues for the abandonment of the paramountcy principle despite its widespread consensus; argument is that the principle cannot be justified on the basis of the common reasons which are advanced in support of privileging children's interests over and above everyone's else's interests; Reece uses the case study example of gay parenting in order to argue that because of the indeterminacy in the application of the paramountcy principle, court's instead are pre-determining outcomes based on the application of a policy which assumes the superiority of the nuclear family; author extends this policy to support the argument that courts are not in fact deciding on the basis of the paramountcy principle but are applying the policy that attempts to avoid deviations from the norm; argument is that in this way, the paramountcy principle is in fact harmful and should be abandoned in favour of a framework that views the child as simply a participant in the dispute with all interests to be taken into account 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 o 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) o 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: o 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: o Reece argues the child in the specific case might not be the most vulnerable individual o 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: o Reece argues this a self-defeating argument (ie. why become a successful adult if your interests will be subordinated to those of children) (*questionable) o 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: o 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: o A desire to make sacrifices for your children is the mark of parenthood
? Utilitarian arguments: o 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 o 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 o 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 o The question in these cases of whose interests were to be prioritized given the fact that both mother and child were children was resolved by determining who the child was that was the subject of the application (ie. depending on the semantic structure of the subsections) o This demonstrates that any justification that is advanced which is based on childhood or children as a group is insufficient, given the importance placed on the individual child Why the principle is harmful: gay parenting case study
? Uses the case study of gay parenting to illustrate the point that the principle is more than a harmless statement of intent and can be dangerous
? In these cases, Reece demonstrates that courts have favoured heterosexual relationships over homosexual relationships (C v C's presumption that heterosexuality was to be favoured to be overcome by gay parents)
? Justifications in favour of the presumption: o Physical abuse = outright rejection o Corruption (ie. more likely to be gay) = best response is no response bc this argues that homosexuality is inferior o Stigmatisation of the child (ie. severance from normal society)
? Argument of Reece is that judges are taking judicial notice of the undesirability of homosexuality, in the absence of evidence and seeing the nuclear family as ideal (as evidenced in the C v C decision) and in the event of a marriage breakdown, privileging the next best thing
? Reece argues this case study shows that a policy has in fact usurped the application of the paramountcy principle (privileging of nuclear family units or closest to) which will affect anyone part of a group that deviates from the norm o

? The policy is one of support for the nuclear family unit which can be broadened into a policy which supports normality or suppressing any deviations from the norm
? Because of the indeterminacy of the principle, this policy application has taken over and the parent who gets custody is the one who best fits the normality mould
? Arguments and indeterminacy, value-laden judgments and subjectivity of decisionmaking fall down because the policy is in fact determining the outcome, hiding behind the screen of the paramountcy principle
? This policy is extraneous to the welfare of the child (ie. it's not the paramountcy principle being applied at all bc no evidence)
? Although this is not the only policy dictating outcomes, it is used as an example in order to aid in the acceptance of outcomes being dictated not by the paramountcy principle but by extraneous policies Societal goals vs. the individual: the stigmatization argument
? The policy of promoting the nuclear family is not about the individual but is about the good of society
? Only individuals are meant to be in reach of the principle and Reece uses the stigmatization argument as an example of the way in which the application of the policy can harm the welfare of children
? Only society can promote children's welfare (as a group) and therefore the paramountcy principle is not effective in promoting welfare as a group but the stigmatization which occurs actually increases prejudice and the possibility of parents remaining closeted which can be harmful to the individual child
? The solution is that it's for social policy and not individual parents to eliminate prejudice and reduce the stigmatization of children
? Argument is that the paramountcy principle is not only ineffective but it is harmful as it contributes to a repressive society because it: o Places the responsibility for the child's welfare on parents and not society o It endorses the status quo which has a regressive effect on societal development o It subordinates the rights of adults to the needs of children Herring: Farewell Welfare?
? Summary: Herring responds to 3 main criticisms of the welfare principle (indeterminacy, failure to consider children's rights, failure to take into account the interests of others) and argues that a reconceptualization of the welfare principle is required, rather than an abandonment; argues for relationship-base welfare, taking into account the context of relationships in which the child is raised in order to best promote the best interests of children; argument is that indeterminacy in application is not necessarily a bad thing as the flexibility of the principle allows for individual results rather than arbitrary applications of rules; argues that children's rights advocates need not argue for the abandonment of the welfare principle, but best interests accounts can involve consideration of children's rights Criticisms of the welfare principle:
? Criticism 1: indeterminacy o The argument against the welfare principle is that there is uncertainty is how to apply the principle (ie. how is the court to decide what is in the best interests of a child where there is no agreement on what the best possible outcome might be as there is no agreement as to how best to raise a child) o The principle aims to promote the child's welfare which means the child is to have more of the things that are of benefit to them o However, the issue is the uncertainty as to what the good things are (ie. what is a good life?)
? Herring's response to this criticism is to argue that this aspects of the welfare approach is instead to be praised, as it enables the production of individual outcomes, based on the particular circumstances of each case
? He points out that although some have argued there is greater consistency in outcomes that assumes (especially in out of court

settings), this does not apply to litigation and the malleability of the principle allows certain assumptions/presumptions to be adapted, preventing consistency in results
? However, Herring argues the fact that the principle can be flexibly applied is to be praised and the indeterminacy of outcomes should not prevent the use of the welfare principle, particularly given the fact that people don't organise their lives on the basis of the law in the area of family law o A second aspect to this criticism of indeterminacy focuses on the subjectivity and prejudice of the judge in responding to cases o The argument is that judges use their individual prejudices to decide cases in the guide of the welfare principle and attach weight to factors they individually value and dismiss factors on the basis of prejudice, producing discriminatory outcomes for certain groups (EG. Reece's argument about gay parenting)
? Herring responds to this by arguing that the judge perhaps isn't imposing their own views but the vagueness of the principle leaves the judge with little to go on except their own moral values
? Herring argues this is inherent in the judicial role and resort to subjective preferences is applicable in many areas of the law
? Herring argues judges in practice are going to great lengths to be seen not to be doing this by instead focusing on expert opinions and scientific evidence in order to avoid such criticisms o A third aspect of this criticism is that the principle provides no help in negotiations and provides no guidelines to couples in relation to dealing with disputes outside of court o The argument here is that if there were a clear principle in application, this would result in less litigation as parties would have less incentive to try a case in front of an individual judge which increases costs and is detrimental to children
? Herring responds by arguing this criticism is unfounded as even if a clearer principle were in application, parties would still resort to litigation bc of the emotional nature of the dispute
? He argues the best way to assist parties in settlement is to ensure the law accurately reflects widely accepted norms (EG. Dewar argues in Australia, the presumption in favour of equal time is not working bc this is not widely accepted as a social norm)
? Herring points to the universal support of the welfare principle and argues this is the best way to ensure less litigation o There is also the argument that the application of the welfare principle has resulted in bad outcomes being reached by courts
? Herring argues this is unfortunate but unavoidable and would occur even if the guiding principle was not the welfare of the child o *Note: interesting point about combating uncertainty - Herring argues those arguing against the welfare principle, are in reality arguing for a reconceptualization of the principle bc they are still basing the argument on what will be in the best interests of the child ? eg. Melli argues a presumption in favour of the primary caretaker will be in the best interests of the child and can be rebutted if this will not be in the child's best interests
? Criticism 2: no focus on children's rights o Children's rights have been the major challenge to the welfare approach o This argument springs from a rejection of paternalism (ie. treating children as objects with power in the hands of the adult/court who knows best)
? Herring argues that children's rights advocates often include welfare in their description of children's rights (eg. rights should not be used in a way that harms children)
? His argument is that the application of a rights approach or the application of a welfare approach will reach the same result
? Notes there may be differences in decisions involving the child's

autonomy (ie. should a court respect a child's decision to harm themselves)
? Argues Eekelaar's concept of dynamic self-determinism is not antiwelfare because the goal is to promote the best interests of the child (ie. to be put in the best position as an adult to make decisions about how to live their lives)
? His argument is that welfare is wrapped up in rights and rights are not devoid of welfare considerations and therefore rights advocates can accept rights restrictions in order to promote the child's welfare
? *Note: be aware of the important distinction between who the primary decision-maker is (child versus parent/court)
? Herring's point is although the approaches are very different, a rights approach should not be calling for the abolition of the welfare principle but instead rights approaches can be used to incorporate children's views within the welfare principle as this would be in the best interests of the child
? Criticism 3: the interests of others are not taken into account o The argument is that the child's interests should not be prioritized to the detriment of all other interests involved
? Herring responds by arguing that the court's have found ways of taking into account other interests (despite using the paramountcy principle)
? Herring's main argument is that there is no difficulty in interpreting welfare as being able to take into account the interest of others, if the welfare principle is reconceptualised as relationship-based welfare
? It is important to recognise that children are raised in relationships and it is therefore in the best interests of children to be in healthy relationships which involving give and take and the recognition that the child's interests will not always be prioritized as this will not maximise their welfare
? Relationship-based welfare will mean the welfare principle can be retained and the rights/interests of others can be respected
? It is important to recognise that the best interests of the child cannot be considered in isolation without seeing the context of the relationships in which the child exists
? Although criticisms have been raised that this approach makes it easy to overlook the interests of the child and provides no guidance in balancing interests, Herring argues this is no less applicable to other principles/theories
? Herring argues guidance is given:
? The emphasis is on current relationships and fostering them in the future which means cases where a child has an existing relationship with the party can be distinguished from cases in which the child has no existing relationship
? The approach requires an assessment of the past and future relationships involved as well as looking at the relationship between parents (eg. where a father harms a mother this is harmful to the child)
? Parents need to be on board
? Quality, not quantity, of contact orders are important The positive of the welfare principle
? 1. Symbolic message is important given the value, importance and vulnerability of children who are in need of protection by the law
? 2. Important because of the form of legal disputes, where the child is not represented
? 3. Powerful language and the importance of parents not talking in terms of their rights but in focusing on the best interests of the child
? 4. Children are blameless and did not accept responsibility as their parents did
? 5. The principle has attracted world-wide support and is the cornerstone of international instruments

? 6. Flexibility in solutions is to be praised Herring and Foster: Welfare means Relationality, Virtue and Altruism
? Summary: although welfare and best interests are concepts often presented in individualistic terms, authors argue that these concepts properly understood should recognise the importance of relational interests, the performance of obligations and the virtue of altruism; the argument is that in applying the welfare/best interests tests, the courts should be explicit into taking into consideration the interests of parents, friends, family members and carers in order to adequately make decisions in the best interests of those involved Introduction
? The definitions of best interests and welfare are often tacitly assumed and go unquestioned
? It is routinely assumed that the only relevant perspective is that of the child or the incapacitous adult, viewed as an 'atomistic entity'
? At first blush, it seems that courts are expected to make best interest determinations by looking solely at the interests of the person involved, ignoring the impact of the decision on others
? Authors argue that the course should not use the welfare/best interests tests in such a narrow way and should taken into account the interests of third parties (and have no qualms about being explicit in doing so)
? According to the authors, a proper understanding of someone's well-being can require decisions to be made which will primarily benefit others
? The well-being of a person cannot be assessed in isolation ? it is only by considering the network of relationships within which a person lives that well-being can be properly considered
? Meeting one's obligations and cultivating virtues are also seen as aspects of well-being and therefore a judge applying the welfare/best interests test should decline to make an order which would cause significant harm to others in order to procure a small gain for the child/incapacitous adult
? Contend that behind judicial determination of welfare, there lies the notion of the good life, and that an essential component of the good life is that humans are quintessentially relational beings and therefore there will be circumstances in which it will be in the individual's best interests to act towards a third party in a way which viewed objectively, seems altruistic The law
? Has tended to view welfare and best interests as effectively the same and takes a broad view
? Judicial observations are suggested as supporting authors contention that the necessary determination can and should include consideration of the interests of persons other than the child/patient in question, on the grounds that their welfare cannot be disconnected from the interests of others
? Balance sheet approach ? raises the question of what is meant by welfare and how does one determine whether a characteristic has a plus or minus score and how much weight should be given?
? The courts' objective may be glossed as: we want to take all practicable steps to ensure that the child (or incapacitous adult) lives as good a life as possible but this raises the question what constitutes a good life?
? Review of the philosophical literature about what amounts to a good life in order to demonstrate that notions of altruism, meeting one's obligations and relationality are understood by a broad range of philosophers to be part of the good life Philosophical perspective: what do welfare/best interests mean?
? Uses philosophical literature to show that there is a perfectly respectable philosophical case for seeing well-being (and welfare/best interests) as including notions of virtue and relationality and this is why judges and lawyers do not need to understand best interests/welfare in a narrowly individualistic sense Happiness and well-being: well-being is not entirely tied to happiness (rejection of the

hedonist approach)
? If well-being were entirely tied to happiness, judges should order solutions that produce the greatest pleasure but this analysis would deem one's responsibilities, the notion of flourishing, the development of virtues and the impact of one's life on other irrelevant
? The hedonist approach takes no account of whether a person should or should not feel as they should and requires no weight to be attached to the views of those caring for the individual
? Challenge to the hedonist argument is that we do not in fact choose to live our lives on the basis that pleasure alone is what makes life good ? most people make decisions that they know will not promote their immediate happiness in order to achieve longer term goals or to do good for others
? Many people seek not only happiness but achievement and virtue and seek the same for those they care for Virtues and well-being
? Exhibiting virtue is seen by many writers as an element of well-being
? Kraut argues well-being is flourishing and this involved the development and exercise of skills
? No agreement about what counts as virtue
? Some people question whether it can be held to be virtuous to have a virtuous decision made on your behalf (ie. does compelled altruism lose the moral virtue of altruism?)
? Response of the authors is to say that the process of making decisions on behalf of others and on behalf of those who might regain capacity, can be directed towards the development of virtuous character
? Question the assumption that children or those lacking capacity cannot be virtuous bc they lack the capacity to choose ? choice is commonly assumed to be a central notion of virtue but can we say that children or those lacking capacity are incapable of being virtuous? = wrong as it is embodies an unduly narrow understanding of virtue and a proper understanding of virtue should not define itself purely by reference to choices as 'anyone dealing with those lacking mental capacity knows that they rarely lack desires, attitudes, sensibilities or expectations' Life goals and well-being
? Well-being as being connected to succeeding in goals people have set for themselves
? Crisp argues we pursue our plans bc they think of them as objectively good
? Therefore, many who adopt an autonomy-based understanding of autonomy see the value not simply being in the satisfaction of autonomy but in the attainment of valuable goals and many goals will be valuable bc of their relational nature Interconnected well-being
? Very difficult to separate the interests of children from parents and difficult to see how one can consider the welfare of the child without considering the welfare of the parents
? Important not to overlook the centrality of relationships to our sense and understanding of ourselves
? 'In the context of intimate relationships, the boundaries between selves break down. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others' Well-being and thriving
? Foster has suggested we should seek to maximise the total amount of dignity in contemplated transactions
? Other principles are second-order principles, ultimately dependent on and derived from dignity
? 'Dignity in this sense is human thriving'
? 'It is best for humans to be human. One of the essential and quintessential human qualities is relationality'
? Under this approach, need to conduct an audit of the total amount of dignity at stake which will involve assessing the dignity-interests of all the stakeholders Conclusion on philosophical material
? The notion of well-being should not be restricted to the achievement of individual happiness

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