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The Welfare Principle Notes

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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

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