A more recent version of these Care Proceedings notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Supervision 5 - Care Proceedings The Welfare Principle
1. What is the 'Welfare' Principle?
* The definition in s1 CA 1989 is so discretionary it's unhelpful. But always mention the no delay principle in s1(2) CA and the no order principle in s1(5) CA.
* Herring focuses on a relationship based welfare test.
* Bainham focuses on primary and secondary interests.
* Eekellar focuses on the "least detrimental alternative" overall.
2. Tension between s1 CA 1989 and ECHR?
* CA requires paramountcy of the child's interests per s1(1). This has been interpreted by the courts to mean 'only' relevant interest. In J v C and Re O (Contact) Bingham MR said the parent's interests are only relevant insofar as they impact on the child. In Re KD Lord Oliver said the parents' claims to contact are subservient to those of the child. Indeed, it isn't the parent's right to contact, but the child's right. But the HRA 1998 gives the parents a right to contact with child (R v UK, B v UK, W v UK) where does that fit in? Re N (Jehovah's Witness) said parents' rights to religious upbringing can be infringed as child's welfare is paramount.
* ECHR guarantees EVERYONE equal rights per Art 1 and Art 14. This requires a balancing of rights and depending on their "nature and seriousness" the child's rights may override the parents' per Johansen v Norway and Yousef v Netherlands requires child's rights take priority in a conflict. However, the Nielsen v Denmark approach to balancing (hospitalisation of child isn't deprivation of liberty but exercise of mother's parenting rights) clearly shows the ECHR favours parental rights and it is difficult for a child's rights to override the parent's rights. Bainham, Fortin & Douglas say it gives inadequate protection to children as it was drawn up with adults in mind.
* In Re KD Lord Oliver thought the difference was semantic only as the state can only interfere with parent-child bond where threshold is met, where child is at risk, so it considers both.
* Reece contends the paramountcy principle should be abandoned.
* We need to reconcile the two - Not radical "paramount" in its ordinary meaning is preeminence, not ONLY under the current jurisprudence.
* Outside welfare, child's rights are considered independently of the adults and weighed up such as Douglas v Hello!
Care Proceedings Fox-Harding states the CA is strongly paternalistic whilst upholding parent-child bond. Z v UK states there is a positive obligation on the State to protect the child from Art 3 and Art 8 breaches. Requires the child to be protected, but only proportionally and not unnecessarily removed. In Haase v Germany the child can't be removed simply for a more 'beneficial environment there must be a pressing need for his removal. Under Re L (Fair Trial) there is a duty of disclosure on Local Authority throughout under Art 8. There is also a duty on the Local Authority not to notify parents and not to change the name, religion or consent to medical treatment per s33 and Re G (Challenge to LA's Decision). 16
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