Family Law Child Welfare Principle and Parent Autonomy - Essay Example

? Family Law Child Welfare Principle and Parent’ Autonomy The population of United Kingdom has been estimated over 62 million in 2011 and among these around 17.3% are children of 1-14 age groups. There is wide variation in the living standard and incomes of people across UK due to which the children are also living in varied conditions. There is no single legislation covering the child protection rights in UK as there is myriad of laws and guiding principles implemented from time to time to define the duties, responsibilities and power of guardian and parents regarding childcare1. At present the matters of child care, custody and welfare are examined and managed through the family law and welfare principles. UK has centuries’ long history of childcare legislation that began with the series of Poor Laws implemented from 16th to mid-20th century defining the powers and responsibilities of the children regarding childcare. These laws were followed by The Matrimonial Causes Act of 1857, Children Act 1948 and The Children and Young Persons Act 19692. The most comprehensive, integrated and far reaching reforms to the child care law were introduced in 1989 as The Children Act 1989. This consensus legislation combines public and private law provisions under one umbrella and the current child protection system is also based upon this law. The Children Act 1989 guides all the court proceedings and decisions regarding the matter of child upbringing or his property administration. The Children Act 1989 has decided the paramount considerations for the welfare of the child by clarifying that the welfare of child is supposed to be the first priority while making an order3. The law asserts that while making a decision the court has to consider the wishes and feelings of the child and efforts should be made to preserve the home and family links of the child. The core concept of parental responsibility was also defined under thus law. It has been explains that the parental responsibilities are "the rights, duties, powers and responsibilities which by law a parent of a child has in relation to the child and his property” (section 3). Since all the statuary laws have to be interpreted by the courts this legislation also guides the court while deciding different types of cases about child care and custody. This law possesses crucial importance within the England family laws because it determines the boundaries and authorities of the parents while dealing with the matters involving their children. The court is also supposed to use these guidelines and principles while making the decisions of the cases of the child custody and care. These principles also clarified that the welfare of child automatically prevails over the rights of all other family members including parents4. Though these principles have been regarded as milestone in the legislative history of childcare but it also raises the question about the balance between child welfare and the rights of other family members. It places certain responsibilities and duties upon the parents while the rights of the parents are not explicitly defined and explained. Prior to these laws and principles, the fathers were given the rights to make the decisions for their child rather than court5. The father was deemed as the natural guardian of the child eligible for making the decisions for his legitimate child unless any sign of danger or cruelty is exposed. However, the changes in the family laws and welfare principles changed the earlier approach and concerns towards the childcare. The interest of the child was introduced by Court of Chancery as justification to interfering with the rights of the father.6 After these decisions, a gradual change occurred within the welfare principles and by early 1890s the welfare of child evolved as a dominant matter. The legislations asset that the courts have to give importance to the wishes and feelings of the children as it is the core principle of child welfare. It raises the question about creating balance between the rights of the children and the rights of the parents. The welfare of the child seems to be given too much importance that the rights of the parents seem unimportant and it appears that the welfare principle within the family law entails the parents to make sacrifices for their children while restricting their autonomy7. The child welfare principle is often criticizes on the basis of preservation of the parent rights. There are different schools of thoughts arguing in favour and opposition of children welfare at the cost of parent’s autonomy. The opponents widely argue that the welfare principle solely focuses upon the child while overlooking the parental welfare. The welfare principle seems lacking balance between the rights of the child and parents and it seems that child welfare is to be achieved at the expense of losing the parental welfare8. The other school of thought arguing in favour of child welfare paramount principle insists that that children have the right to get their welfare on top priority and adults are naturally inclined towards self-sacrifice because they have created the children. Sacrifice lies in the nature of the parenting and thus the children welfare is justified at the cost of parents’ autonomy. It is also argued that the child is vulnerable and need more care and attention and thus to make them a responsible and well groomed adult it is imperative that the parents sacrifice for them and give paramount priority to their welfare. This justification however, is not widely accepted and there are certain arguments that insist upon creating balance between the welfare of the children and parent autonomy. Experts have also called for reconceptualising the children welfare so that the child could be taught about mutual respect and the social obligations that they have to fulfil as child. The adults should not be asked for excessive sacrifice for gaining minor benefits. The welfare of the children should be given importance and priority but the personal freedom and autonomy of the parents should not be compromised. The courts play major role in determining the limitations and dimensions of parental responsibilities and duties. An important issue related with the parental responsibility regarding the child welfare is internal relocation issue. It has been set forth by the law that all the objections of the parents regarding the internal relocation have to be taken to the court that issue a Prohibited Step Order (PSO) and the applications would be examined under the Children Act 1989 and welfare checklist of the act. The recent case of Internal Relocation9 clarifies that the parents have to exceptionally justify the circumstances and conditions on where the child should live. In this case the issue of internal relocation of four children was decided by the court. The parents of these children had divorced in 2005. The children were living with the mother whereas the father was in regular and generous contact with the children. The mother wanted to move from the north-east to Orkney Isles with the children and filed the application in the court. The mother wanted to move to the new place because she has obtained employment at Orkneys and her new husband has already moved there. The views of the children regarding the move widely vary. One child was in favour of the move, one wants to stay with the father whereas one want to stay with the mother at the same place. The children were divided on the matter and the court has to decide whether to allow relocation to the mother or not. The application of the mother was refused by the court at the first instance and it was decided that the move of the mother is not significant for the children welfare due to the complexity of the route and considerable difference between the two locations. The court focuses upon the emotions of the children and decided that the move will emotionally harm the children. The mother appealed the decision however her application was dismissed by the court. The court decided that the welfare test was not required in this case because the circumstances were not exceptional10. The decision of the court for this case clarifies that all the cases of the internal relocation would be decided by the court according to the welfare checklist and unless any exceptional circumstances the court will not conduct the welfare test. In this case the court made the decision according to the child welfare checklist but the rights of the parents to live according to their wishes were not considered. Though the parents’ right to decide their place of living also carried considerable weight but the court stop the mother from moving through PSO because the move didn’t appeared in the best interest of the children. The case clarifies that the family laws forces the parents to sacrifice their autonomy for the welfare of the children and in many cases there are always possibilities that these restrictions will negatively affect the wellbeing and care of the children. The court denial to the relocation request of the parents could cause psychological harm to the parents that could be severe enough to affect their care of their children. The parents might face financial, social and psychological issues due to the relocation restriction and eventually the children have to bear the negative consequences of the sacrifice imposed upon the parents by the court. There is need and strong demands for making the relocation decisions flexible and more supportive to the parents as well. It is important that the courts should deny the relocation requests of the parents only if their plans and motives are unreasonable or unrealistic. However, the courts often refuse the welfare test due to which it became difficult for the parents to prove that the relocation would not cause harm to the children and eventually the potential emotional harm of the children is prevented at the cost of the emotional and psychological harm of the parent who might suffer from stress and discomfort due to limitation on living at the place of their choice. The decision of the case also clarifies that the welfare principles limits the freedom and wishes of the primary carer of the children. If the parent want to have the custody of their children in case of divorce they have to bear it in mind that it could also take them the freedom to make the decision for deciding the place for their living because the court will decide the relocation will favour the children or not. The parents are supposed to sacrifice their plans and wishes for their children that seems unjustified if viewed from the perspective of the parental rights. The parents also have certain rights and freedom but their degree of freedom is taken away by the family welfare principles because they are supposed to sacrifice for their children while overlooking their own wishes and planning. It implies that the welfare principle of the family and childcare law limits the right of the primary carer to move freely according to own wish, desire and convenience. It could also affect the family life of the primary carer with new partner as they might decide to spend their lives at new place but the court prohibits them to move if it does not seems in the best interest of the children. In this situation, the primary carer has to sacrifice his plans, emotions and wish. It is possible that the primary carer wilfully sacrifice for the best interest of the child but it is not necessary in all the cases and regardless of own wishes the carer has to follow the principle and family law for the good of the child. The entire discussion could be sum up with the conclusion that the family law and child care principle unjustifiably entails the parents to sacrifice their wish and freedom. The childcare often comes at the cost of parental rights and autonomy due to which there is need of restructuring the law for creating balance between child welfare and parents’ rights. Bibliography Bower, L.J. in Re Agar-Ellis (1883) 24Ch, D317 De Manneville v. De Manneville (1804) 10 Ves 54 and Wellesley v. Duke of Beaufort (1827). Dr Nicola Taylor, Megan Gollop, Professor Mark Henaghan, Relocation Following Parental Separation: The Welfare and Best Interests of Children (Centre for Research on Children and Families and Faculty of Law, University of Otago, 2010) 6 George, Robert H. ‘Re F (Children) (Internal Relocation) [2010] EWCA Civ 1428, [2011] 1 FLR 1382’ (2011) 33 Journal of Social Welfare and Family Law, 169-174 Martha Fineman, Karen Worthington, What is right for children? the competing paradigms of religion and human rights (Ashgate Publishing, Ltd., Aug 10, 2009). 270 Mary Langan, Welfare: needs, rights, and risks (Routledge, 1998)128 RE F (INTERNAL RELOCATION) [2010] EWCA Civ 1428 CA Shazia Choudhry and Helen Fenwick, ‘Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act’ (2005)25 Oxford J Legal Studies 453-492 Tina Bond, Jill M. Black, Jane Bridge, Family Law 2008 (Oxford University Press, Apr 28, 2008) 487 Zanifa McDowell, Elements of child law in the Commonwealth Caribbean (University of the West Indies Press, 2000) 79 Read More