The concept of primacy of best interest and welfare of child

The notion of best interest of child generally demands that decision makers must focus on achieving the best outcomes for the child while weighing the best interest of the child as against the other interests primarily the interests of the parents as the decision makers of their child’s welfare. The questions of balancing the interests of the child with that of the parent may arise in cases where separation is required between the parent and child because the former is not providing adequate levels of care, or where the child may claim autonomy to decide medical treatment related issues where the parent may lack capacity to do so. There is a general principle that holds that children benefits from the society of their parents and that contact between parent and child is a fundamental element of family life creating a positive obligation on the state (and the judge), to take measures to maintain or restore contact between parents and children.This also depicts the dilemmas before courts in many cases where the parents may not be considered to be appropriate caregivers due to mental capacity issues, child abuse or domestic violence issues, or other issues that may compromise the parenting of one or both parents. Such cases may involve conflicting interests between child’s welfare and parents’ rights to provide care to their children and may challenge the courts in providing responses that protect the interests of the children while balancing the interests of the parents. This essay critically evaluates the challenges faced by the courts in protecting the welfare of the child and supporting caregivers whose parenting may not be considered ‘good enough’.

First, to understand the notion of parental responsibility because that is essential to understanding the contexts in which state may justifiably intervene, some context can be seen in the Section 31 (2)A of the Children’s Act 1989 which allows the court to make a care order or supervision order for the child, if the child is suffering or is likely to suffer significant harm attributable to the care given to the child or being beyond parental control. Thus, a situation where the child may be harmed attributable to the care of the caregiver may reflect on whether the parent is providing care with appropriate parental responsibility or not. It is important to note that the law takes into consideration the diversity with which parents may regard care issues as also noted by Hedley J in Re L (Care: Threshold Criteria) that “children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. Courts cannot however intervene in all kinds of cases where questions related to parenting and issues that flow from it may be involved and the words ‘likely to suffer harm’ with respect to children do open up to interpretation where the courts may be required to consider a number of factors before making any such assessment. The courts are thus required to take a nuanced approach, which also opens up possibilities and challenges related to interpretation where the primacy of the child welfare does not remain the sole criterion.

The concept of primacy of best interest and welfare of child is an important part of child law. In international law, the United Nations Convention on Rights of Child 1989, incorporates the principle of primacy of children’s best interests in actions concerning them in Article 3(1). In English law, the Children’s Act 1989, Section 1

• John Eekelaar, "The role of the best interests principle in decisions affecting children and decisions about children" (2015) 23 (1) The International Journal of Children's Rights 3.
• Re C (A child: suspension of contact) 2011 2 FLR 912.
• Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, [2064].
• Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35.
• Cathy Cobley and Nigel Lowe, ‘Interpreting the Threshold Criteria under Section 31(2) of the Children Act 1989 - The House of Lords Decision in Re B’ (2009) 72(3) Modern Law Review 463.

incorporates the principle of paramount consideration of welfare of child. The European Court of Human Rights has also weighed in on the paramountcy principle on the basis of how it interacts with the ECHR, Article 8 rights of family of the parents and children. Thus, in R v United Kingdom, the ECtHR held that parental rights of access are independent of the best interests of children, and this requires an act of balancing of the interests of the parents and the children. This does not however mean that the court would support the parent to be provided access when that is patently contrary to the welfare of the child, because paramountcy of children’s interest would take precedence in such case. Therefore, both English courts and the ECtHR have tended to consider the paramountcy consideration of children in cases where parental rights of access may also be involved.

This paramountcy consideration of children’s welfare guides the courts in England and Wales to ensure that the ‘sole consideration’ in cases involving children is to the welfare of the child and that the rights of the parents are balanced as against the welfare of the children and parents’ rights are considered only to the point where they contribute to the best interests of the child. Thus, there is scope for tensions between the rights of children and the rights of their adult caregivers and the courts may be required to balance these tensions by protecting the rights of the child but also supporting the adult whose parenting may not be good enough. It would be useful to consider what provisions are made in legislation to guide courts in ascertaining whether decisions support welfare of the child. An important and relevant measure for responding to the challenges faced in cases involving best interest considerations is to make reference to the ‘welfare checklist’ contained in Section 1 of the Children’s Act 1989. This checklist includes a range of considerations relating to the upbringing of the child. Section 1(3) (a) to (g) contains specific factors to be considered by the courts when they are ascertaining the best interests of the children.

Thus, courts are required to consider the ascertainable wishes and feelings of the child concerned (Section 1(3)(a)). In M v M (Custody appeal), the Court of Appeal set aside the lower court order granting custody to the mother on the ground that the judge had failed to consider the persistent opposition of the 12 year old girl to such arrangements. Court must have regard to the physical, emotional and educational needs of the child when making an order related to them (Section 1(3)(b)). In Re K ( Residence Order: Securing Contact), the court considered these needs as the reason why custody of the child was to be given to the father who was employed and not the mother who was unemployed at the time and not able to provide care to the child. Courts are required to consider how orders can have effects on the child if there are any change in the circumstances (Section 1(3)(c)). In B v B (Custody), the Court of Appeal refused to give custody to the mother who had left her 2 year old child with the father and who had since brought up the child. The age, sex, background and other relevant characteristics of the child are also essential to ascertaining the welfare of the child (Section 1(3)(d)). In Re T

• J Brian Sloan, Primacy, Paramountcy, and Adoption in England and Scotland in Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge: CUP 2016)
• R v United Kingdom, [1988] 2 FLR 445.
• Yousef v The Netherlands, [2003] 1 FLR 210; Pini and Others v Romania, [2004] EHRR 275.
• Claire Simmonds, "Paramountcy And The Echr: A Conflict Resolved?." (2012) 71 (3) The Cambridge Law Journal 498.
• J v C (1970) AC 668.
• M v M (Custody appeal) [1987] 1 WLR 404, CA.
• Re K (Residence Order: Securing Contact) [1999] 1 F.L.R. 583.
• B v B (Custody) [1985] FLR 166, CA.

(Custody: religious upbringing), the Court of Appeal set aside the lower court order denying custody to the mother because she joined Jehovah's Witnesses, but also subject to a condition that blood transfusions for the children would be allowed if necessary. Any harm previously suffered or at risk of suffering is also essential for ascertaining welfare (Section 1(3)(e)). In L v L (Child abuse: access), the judge awarded custody to mother and supervised access to father of their five year old daughter because the father had abused the daughter. Because the child seemed to be attached to her father, supervised access was allowed to ensure that the parent who had obviously not done good parenting would still be supported in access to the child so long as this was supervised and the child would not be placed in harmful circumstances. The capacity of parents to meet their responsibilities of meeting the needs of the child is also a consideration for ascertaining welfare of the child (Section 1(3)(f)). In B v B (Custody &c), the court supported the mother’s custody of her two year old son when she went to live with her lesbian partner on the ground that her sexuality is not an impediment to meeting her responsibilities as a parent.

In cases where the child’s welfare may be closely interlinked with the question of parenting, courts may have to balance the interests of the children with the interests of the parents. Generally, children and parents have a common interest in living together and being a family. However, in certain cases, the question may arise as to whether the interests of the child is served by contact with parents or whether such contact is detrimental to the welfare of the child. At this point, courts would also be guided by legislation, particularly the Children & Families Act 2014 (CFA 2014), Section 11 of which amended the Children’s Act 1989 Section 1 by inserting sub section (2A). There is now a presumption in the English law that unless contrary is proved, relationship between parents and children even after separation is in the best interests of the child and is based on the Private law viewpoint that favours contact between children and parents as being beneficial for children. Article 9 of the UNCRC takes a similar approach and favours contact between children and parents unless it proved that such contact is detrimental to the interests of the child. Even though courts have preferred to apply the welfare principle to each individual case and tried not to generalise the issue of children’s welfare, presumptions have also played a role in how courts interpret best interests of children.

There is now a statutory duty for the court to presume the best interest of the child through maintenance of their relationship with the parent. The decision in J v C was also based on the presumption of reasonable contact between a child and family. In cases where the child may be in care, and the parent makes an application for a contact order under Section 34(1)(c) of the Children’s Act 1989, courts have to give consideration to the effect that the contact with parent may have on the best interests of this child and consider the previous history of relations between the child and parent. However, how would the courts protect the interests of the child when the parent may themselves be the potential cause of harm to the child because of bad parenting or other factors that may impede good parenting under the circumstances? For instance, the parent may be suffering from mental health issues that may Continue your exploration of Balancing Family Contact Presumption and Child Welfare in the Family Justice System with our related content.

• Re T (Custody: religious upbringing) (1975) 2 FLR 239, CA.
• L v L (Child abuse: access) [1989] 2 FLR 16, CA.
• B v B (Custody &c) [1991] 1 FLR 402.
• David Norgrove, Family justice review: Final report (London: The Stationery Office 2011) 4.
• J Herring, “The welfare principle and the children act: presumably it's about welfare?” (2014) 36(1) Journal of Social Welfare and Family Law 14.
• J v C (1970) AC 668.
• C (Children) [2011] EWCA Civ 1774.

have to be considered by the courts while ascertaining whether the parent can provide care to the children under the circumstances. Literature suggests that parents with mental health issues may not be competent to look after their children and continued care responsibilities may have a negative impact on the child. Nevertheless, the Care Act 2014 engenders conditions in which parents can be allowed to be primary care givers unless their condition puts the children at risk in their care and it emphasises on well-being, care and support planning and assessments. In this context, the challenge to understand how vulnerability affects both the parent and the child because the parent is vulnerable due to the mental health challenges but the child is also vulnerable because they may be exposed to harm due to the inability of the parent to provide care. However, the alternatives to parents’ care, such as, foster arrangements, themselves may involve risks to the child’s continued welfare because the resources needed to ensure welfare are truly constrained at this time. If the continued care by parent puts the child at risk, then the Children and Families Act 2014 allows for the child to be placed in foster care with family or friend carer’s custody or in foster-to- adopt arrangements. The Children’s Act, Section 33 does allow the removal of children from the care of their parents and Sections 17 and 47 provide guidelines for helping children in need. Neglect, exposure to confrontational and violent relationships, and other such reasons can be used to remove the children from parents’ care however, evidence of significant and serious harm may have to be provided for removing the child from the care of the parent. It may also be noted that the Local Authority has the statutory duty under Section 17 of the Children Act 1989 to safeguard and promote the interests of the children. The challenge for the courts in such cases is to align the welfare of the child with the rights of the parents to provide care and in some situations to find answers that can help support the parents’ ability to provide care to their children. Unfortunately, some cases do indicate how the children in such situations may not be adequately supported even by the local authorities because the decisions to place them in foster care may not be taken with due diligence.

For instance, there may be a question as to whether the child is at risk of harm from the parent themselves and if so then how would the courts ensure the welfare of the child while providing support to the parent to take care of the child. This may be a question when the child is at risk of exposure to domestic violence or child abuse at the hand of a parent. Should the courts then presume a link between the welfare of the child and contact with parents and family? In this context, Justice Cobb has observed the following: "The presumption contained in Section 1(2A) of the Children Act 1989" does not operate "to require 'contact at all costs' in all cases, without a proper evaluation of the risk of harm from domestic abuse.”

In other words, courts cannot always presume that the best interest of the child

• Jones Danson et al, 'When parents with severe mental illness lose contact with their children: are psychiatric symptoms or substance use to blame? (2008) 13(4) Journal of Loss and Trauma 261.
• Jonathan Parker, Social work practice: Assessment, planning, intervention and review (London: Sage 2017).
• Sir James Munby, Our treatment of the vulnerable – challenges for the family justice system [2021] Fam Law 745
• Ibid.
• Re W [2016] EWCA Civ 793.
• A local authority v A (residential placement: lack of resources) [2019] EWFC 62.
• Hon. Mr. Justice Cobb, Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm, .

would only be served through contact with the parent and that there should be 'contact at all costs' so that the parent is provided with support in cases where children are at risk of harm. Justice Cobb notes that a proper evaluation of the risk of harm from domestic abuse is where such questions arise due to the bad parenting choices already made by one or both parents that put children at such risk. Justice Cobb makes these observations in the specific context of possible domestic abuse that children may face through contact with parent. Thus, the specific concern is to with reference to Practice Direction 12J, through which an effort is made to make the family justice system safer for victims of domestic violence and their children. Justice Cobb’s observations that parental contact cannot always be presumed to be for the benefit of the children is specifically concerned with situations where the child may be exposed to domestic violence or abuse, as is noted in the following statement: "Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply."

Justice Cobb’s observations have to be seen in the context of how the presumption in Section 1(2A) can be juxta positioned with the paramountcy principle in Section 1 of the Children’s Act 1989. The question is whether the presumption that contact with the family is in the best interests of the child can truly hold in all circumstances, including those involving domestic abuse. Authorities indicate that while presumptions have played an important role in interpreting the welfare of children under the Children Act 1989, courts have also steered away from broad generalisations as to how these presumptions work and have instead applied the paramountcy principle in individual cases. It may also be noted that there is some tension between the paramountcy principle as the sole consideration and the presumption in Section 1(2A) if the courts do not consider and evaluate the risk of harm from domestic abuse or child abuse.

Courts are required to balance the interests of the child with the interests of the parents when the latter also have the right to make decisions for the benefit of the child. Even where parents have the capacity to make such decisions, courts have sought to explain the nature of autonomy of the child to make decisions in certain kinds of cases, which may also reflect on how courts may try to treat the welfare of the child in cases where the parenting itself is not ‘good enough’. It is therefore important to understand the principle of autonomy as it may relate to a child not just where parenting may be a question, but generally. Children even under the age of 16 years may be considered to have capacity to consent as per the principle laid down in Gillick vs West Norfolk and Wisbech AHA and the DHSS. The Gillick test as laid down in the case means that if minor children understand the medical and moral and ethical aspects of their treatment then parental rights may be considered to be terminated and the child will be allowed to make the decision for themselves. Thus, even in cases where good or bad parenting is not an issue, courts may consider that parental authority with respect to medical treatment will diminish with the growing maturity of the child. Even so, the courts will still consider the best interests of the children and not allow parents to make decisions for their children’s medical issues if these are not in the child's best interests. The courts ae driven by the principle that the

• Ibid.
• Ibid, 12.
• J Herring, “The welfare principle and the children act: presumably it's about welfare?” (2014) 36(1) Journal of Social Welfare and Family Law 14.
• Gillick vs West Norfolk and Wisbech AHA and the DHSS CA [1985] 2 WLR 413.
• Ibid.
• Ibid.

welfare and the interests of the child is to be given priority and this principle can be in tension with the parental authority at times.

Using mediation to resolve disputes involving children is one of the ways in which the courts have responded to challenges involved in assessing the welfare of the children in custodial matters. Mediation is provided in statutory processes involving family disputes; for instance, the Children and Families Act 2014, Section 10 mandates mediation information and assessment meeting (MIAM) for a couple seeking legal separation when a child is also involved. Courts have to ensure mandatory MIAM in cases involving disputing couple with an opportunity for amicable child custody arrangements. However, there are cases where the courts would have to take considered approach to understanding how parental responsibility is being fulfilled and why courts may have to intervene if there is a possibility of harm to the child. The essay finds that the courts have to face a number of challenges in this task including interpretation of likelihood of harm, balancing conflicting rights between children and parents, aligning best interests of children with the parental rights to bring up their children, and making do with limited social resources in making arrangements for childrens’ care when parents are not able to do so.

Cases A local authority v A (residential placement: lack of resources) [2019] EWFC 62

R v Blaue (1975) 61 Cr App R 271.

B v B (Custody) [1985] FLR 166, CA

C (Children) [2011] EWCA Civ 1774

Gillick vs West Norfolk and Wisbech AHA and the DHSS CA [1985] 2 WLR 413 J v C (1970) AC 668.

M v M (Custody appeal) [1987] 1 WLR 404, CA

L v L (Child abuse: access) [1989] 2 FLR 16, CA

Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35

Re C (A child: suspension of contact) 2011 2 FLR 912

Re K (Residence Order: Securing Contact) [1999] 1 F.L.R. 583

Re L (Care: Threshold Criteria) [2007] 1 FLR 2050

Re T (Custody: religious upbringing) (1975) 2 FLR 239, CA.

Re W [2016] EWCA Civ 793

R v Blaue (1975) 61 Cr App R 271

R v United Kingdom, [1988] 2 FLR 445

Yousef v The Netherlands, [2003] 1 FLR 210; Pini and Others v Romania, [2004] EHRR 275 Books

Parker J, Social work practice: Assessment, planning, intervention and review (London: Sage 2017).

Sloan B, Primacy, Paramountcy, and Adoption in England and Scotland in Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge: CUP 2016) Journals

Cobley C and Nigel Lowe, ‘Interpreting the Threshold Criteria under Section 31(2) of the Children Act 1989 - The House of Lords Decision in Re B’ (2009) 72(3) Modern Law Review 463.

Danson J et al, 'When parents with severe mental illness lose contact with their children: are psychiatric symptoms or substance use to blame? (2008) 13(4) Journal of Loss and Trauma 261.

Eekelaar J, "The role of the best interests principle in decisions affecting children and decisions about children" (2015) 23 (1) The International Journal of Children's Rights 3.

Herring J, ‘The welfare principle and the children act: presumably it's about welfare?’ (2014) 36(1) Journal of Social Welfare and Family Law 14.

Munby J, Our treatment of the vulnerable – challenges for the family justice system [2021] Fam Law 745.

Simmonds C, "Paramountcy And The Echr: A Conflict Resolved?." (2012) 71 (3) The Cambridge Law Journal 498.

Norgrove D, Family justice review: Final report (London: The Stationery Office 2011).

Websites Cobb, Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm, .

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