Someone recently bought our

students are currently browsing our notes.

X

The Welfare Principle Notes

Law Notes > Family Law Notes

Updates Available  

A more recent version of these The Welfare Principle 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:

The Welfare Principle Basics of the Welfare Principle

*
s.1(1) CA 1989: o When a court determines any question with respect o
? (a) the upbringing of a child or
? (b) the administration of a child's property or the application of any income arising from it o the child's welfare shall be the court's paramount consideration

*
What does welfare mean?
o There is no definition of "welfare" in the CA 1989, but there is a list of factors which a judge should consider when deciding what is in the child's welfare:
? s.1(3)

*
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

*
(b) his physical, emotional and educational needs

*
(c) the likely effect on him and any change in his circumstances

*
(d) his age, sex, background and any characteristics of his which the court considers relevant

*
(e) any harm he has suffered or is at risk of suffering

*
(f) how capable each of his parents, and any other person in relation to which the court considers the question relevant, is of meeting his needs

*
(g) the range of powers available to the court under this Act in the proceedings in question

*
What does "paramount" mean?
o J v C [1970]:
? Lord McDermott:

*
The phrase means more than the child's welfare is the top item in a list of items relevant to the matter in question o The words connote a process whereby,
? when all the relevant facts, relationships, claims and wishes of the 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.
? Herring: So the interest of the children is the sole consideration - everything else is weighed up in relation to this aim,

*
and is only relevant in that it affects the progress of this aim.

*
The interests of the children outweigh even those of perfect parents. o This is slightly odd as the words of the statute don't seem to suggest this is the "sole" consideration
? And it does mean that the impact on parents and how fair this is, is not a factor to consider.

*
When does the welfare principle apply?

*

o This applies when the court is asked to determine any question that concerns a child's upbringing or the administration of their property
? Re X (A Child)(Injunctions Restraining Publications)

*
Bracewell J: o Upbringing means the bringing up, care for, treatment, education and instruction of the child
? By its parents or its substitute parents. o It is of wide application
? Applies to s.8 CA 1989 when assessing against s.1(1)
? Also whenever the court exercises its inherent jurisdiction
? And indeed where the court considers public law orders such as care orders
? And on many other occasions... When does the welfare principle not apply?
o If the issue does not relate to the children's upbringing
? It is clear from s.1 of the CA 1989 that the welfare principle only applies to issues of upbringing

*
The court might still pay special attention to the welfare of the child, but it may not be paramount.
? But this may not always be clear....

*
Re A (Minors) o CoA;
? Deciding whether or not to grant leave to an adult to apply for a s.8 order is not an issue which involves the upbringing of a child

*
But the welfare principle does apply where a child is seeking leave to bring a s.8 order.

*
A v N (Commital: Refusal of Contact: o The welfare principle does not apply where the court is deciding whether to send a parent to prison for breach of a court order connected to the child.

*
CC Greater Manchester v KI and KW: CC wished to interview two twins who witnessed their brother shoot their sister. o Ryder J
? The issue is one which involves an aspect of parental responsibility, but it was not exclusively a matter concerning rearing a child
? Therefore, in view of the public issues involved, a decision under inherent jurisdiction could be taken

*
While welfare was important, due consideration could be taken of the rights and interests of others. o Where there is express statutory provision
? The welfare principle does not apply if a statute expressly states it should not

Buy the full version of these notes or essay plans and more in our Family Law Notes.

More Family Law Samples