Dicsussion of the Statment that the Welfare Principle Is Out-Dated and Limited - Coursework Example

The Welfare Principle Module Module Number Academic Year Seminar Essay Question: “The welfare principle is out d and limited. It needs reform.” Discuss Student’s number The Welfare Principle The issue of welfare continues to form part of current-day debates in the United Kingdom. The political elite is engaged in a debate about various approaches to curbing chronic unemployment, delivering value for money in respect of the welfare state and how underserving beneficiaries of the welfare policy can be made more productive. The ruling coalition is seeking elaborate plans to cap annual increases in most of the benefits for at least three years. In light of these developments, children are at the center of the country’s welfare policy, considering that their benefits are defined by their parents or foster care. This paper examines the effectiveness of the UK’s welfare principle in respect of the provisions of the Children Act 1989 (CA). The Children Act of 1989 The Children Act of 1989 is the primary piece of legislation regulating the children welfare principle. In light of this, whenever a dispute over a child’s rearing or handling of his or her property is brought before a court of law for determination, the Act states that the verdict has to be given in the best interest of the child. Section 1(a) of the Act provides that under such circumstances, the child’s or children’s welfare is paramount, meaning it must precede and transcend any other interests when making an order1. In addition, the principle applies in criminal trial of the child, however in such cases the welfare is considered necessary, but not paramount. In arriving at the paramount or necessary consideration of a child’s welfare, the Act provides some guidance in a checklist form that recognizes various areas of utmost concern. The court will be obliged to observe: a) the provable wishes and aspirations of the child in question with due consideration of his or her age and knowledge; b) his or her physical, psychological and learning needs; c) the likely impact of any modification of these benefits on his or her life; d) the child’s age, gender, social background; e) any impending or past injuries which he or she has suffered; f) the capacity of each of his or her parents or guardian to meet the child’s needs, and; g) the authority of the court to determine the issue as provided by the Act. Despite the seemingly elaborate response by parliament to cater to the unique needs of children, the welfare principle is arguably out-dated and needs urgent reform2. Contradicts EU law The welfare principle is inefficient under the CA 1989, since it contradicts more recent complimentary laws such as the Human Rights Act 1998 and the EU Human Rights Convention. Article 8 of the Convention has not made any significant contribution in catering for the needs of children because of the out-dated principle under the CA 1989 with regard to safeguarding the welfare rights among other interests of children3. As such, Baroness Hale said the EU is about to accede to the European convention” for purposes of ensuring justice and human rights protections4. One major ground for the slack application of absolute welfare benefits to children lies in section 1 of the CA 1989. The provision is so wide in its application and so ordinary it hinders a rights-based assessment of the children welfare. The welfare principle has been in use for a very long period of time. It was initiated in law for the first time following the enactment of the Guardianship of Infants Act 1925 (GIA). Section 1 of the GIA, indicated that when granting rights to child custody or rearing the court was obliged to give the child’s welfare as paramount consideration5. The language was retained in the CA 1989, whose passage came more than six decades in a society with modern challenges such as child adoption by same-sex couples, for instance. The welfare principle inappropriately infringes on parent’s rights to child custody as a result. Limited parental roles In J v C [1970] AC 668, for instance, the court effectively discounted the argument that parents had superior rights under of Section I of CA in respect of the welfare principle. In making reference to provision, the court noted that it was incredible to the judges that the legislature would have left out a clause safeguarding the claimed rights of the biological parent if the lawmaker’s intention was to uphold them. The term paramount literally means supreme. In reality, most people would agree that, based on the common law, the legal system rarely considers any other important issues other than children welfare6. In practice, the infamous welfare principle does not qualify as such. A common principle would apply across board in a similar way as fixed standards enforced at the outset of a process operate. In the latter situation, any subsequent outcomes are judged based on the test. By definition any court would be obliged to start with the outcomes of a case in enforcing the welfare principle. Nor does such a decision made is based on the available facts: some minor evidentiary balance in support of the welfare of a minor will generally be considered sufficient, irrespective of what the dominant interests or the weight of the arguments presented by the opposing side. In reality the welfare principle is just so wide in terms of its discretion it supports the subjective opinion of judges7. The result is then reduced to pursuing self-interests because the only test available is the paramount interests of the child in question. Part III of the CA 1989 creates a system whereby the welfare doctrine covers part of the state control over children rights under parens patriae at the local level. However, without adequate powers to enforce the decision, the welfare principle has become somewhat meaningless. In most cases, advocates weigh the available evidence in deciding the rights and obligations on the relevant parties; but for children lawyers, the welfare principle hinders objectivity in arguing out the cases. The letter and spirit of the EU Convention in respect of the rights and responsibilities of custody for applicants do not apply in this case. Contact is provided for under section 34 of the CA89, but this exception is largely ineffective, in that natural parents lack the rights under the statute8. The infringed role of parents in having rights over their children deserves reform in order to bring such interests to the same pedestal as the interests of the child. However, it is not clear whether a rephrased section 1 of the CA 1989 would resolve the confusion. By requiring any court to determine the issues concerning child upbringing through a balance of the child’s interests with those of parent(s), the controversy will then be occasioned by the lack of clarity in determining when the child’s interests supersede that of the parent9. This complex argument is exactly the legal principle set by the Strasbourg in Johansen v Norway (1996) 23 EHRR 33. In Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 FLR 224, the court attempted to balance the rights of parents with those of their children, but with the welfare policy still in place, children have since been set to enjoy a higher level of autonomy. In respect of this case, parents have increasingly limited rights which begin with control of the subjects and do not go beyond giving them advice10. In reality, no minor should have welfares which are superior to the parent. Parenthood should be reasonably considered more paramount than childhood by virtue of the power of procreation. But the Act wrongfully considers children and courts of law as the only parties with a say on the issue. The welfare principle in the CA 1989, section 1 purports to consider children rights as paramount, but when such an issue is tabled before court, the children have forfeited those rights. In light of these weaknesses of the welfare principle, the child’s age or individual interests are largely theoretical11. Relegated community interests It is meaningless to cater to the interests of children within the confines of the courtroom, without considering their position in their immediate community including the rights of their parents, their siblings, guardians and other parties to their upbringing. The special protection for children under the CA 1989 and the double standards that feature in its implementation are unresponsive to the interests of teenage mothers, who are technically children, but whose children are given absolute protection. It is unreasonable to provide absolute protection to children who are 17 years of age and below and remove the protection when the party becomes an adult. The welfare principle is therefore unresponsive to the susceptibility of parties and the arguably lesser childhood needs, which do not go beyond providing the basic needs12. In Yousef v Netherlands [2003] 1 FLR 210, the court demonstrated that section 1 of CA 1989 is out-dated by asserting that where there is conflict between a parent’s rights and a child’s rights under Article 8 of the EU law, the latter’s rights have to be considered as more paramount. The ruling suggests a more practical step toward reforming section 1 of the CA 1989 by prompting local courts to adopting the precedent. However, the verdict should be interpreted within the unique context in which it was conceived and the reliefs requested by the parties13. In Yousef an absconder father of a young girl sought to be declared under the Dutch law as the child’s guardian in hopes that by doing so his interests would supersede those of the girl’s Dutch mother. The woman wanted a continued stay with her daughter in the Netherlands. The court established that the absentee behaviour of the Egyptian father showed he had no interest or capacity to care for her. In light of these failures on his part, the court decided that he could not disrupt the largely natural family life which the child had been brought up by her mother and her relations for seven years. The decision was based on the earlier verdicts in KM v United Kingdom (2002) 34 EHRR 2 and Elsholz v Germany (2002) 34 EHRR 58 where disruptions of child upbringing were rejected based on domestic instability or “violence.” The same trend of denying even the perfect parents the rights was set in J v C AC 668, and replayed in Yousef, Elsholz, KM and in the latest case of Gurgulu v Germany [2004] 1 FLR 894. In Gurgulu, a father got wind of his child’s birth three months after delivery, at which time the child had been enrolled in foster care for almost the entire period. He sought rights to the child’s care, but failed on the grounds that the child had established a natural relationship with the adopters which could not be seamlessly disrupted14. Narrow application of the principle Currently, section 1 of the CA 1989 plainly considers the welfare principle as only applicable to matters concerning child upbringing. The fact that the welfare principle applies to live births only adds to the controversy in applying the law. UK’s common law considers a foetus as having no distinct rights before birth. The doctrine arguably infringes on the rights of future children by leaving their interests at the behest of the parent(s) in a manner that can be seen as unreasonably seeking to balance the latter’s claims under the CA 1989. The court ruling in Re F (in Utero) (Wardship) [1988] 2FLR 307 practically denied an unborn child any welfare rights, despite a foetus being a prospective child15. In a similar case of St George’s Healthcare NHS Trust v S and R v Collins & Ors, ex parte S [1998] 2 FLR 728, the Court of Appeal held that actions of a rational adult may legally tamper with the life of an unborn baby because such actions are not covered by the CA 1989. The Court ruled that if there was need a pregnant woman can subject herself to reduced medical care even if doing so would compromise the life of the unborn baby. The court decision was based on the outcome of Re MB (An adult: Medical treatment) [1997] 2 FLR 426 where the court legitimized any actions by a rational pregnant woman which could injure or kill an unborn baby. These actions are mainly geared towards preserving the life of the mother in life-threatening situations, but the extreme impacts of their application arguably contradict the very welfare principle they are meant to safeguard, hence the need for reform16. Conclusion Generally, UK’s children welfare principle seeks to protect the interest of children from birth until they become adults. The principle considers these interests paramount hence they supersede those of the parents or guardians. In practice, courts have the highest discretion to determine which way a child’s interests can be best served. In most cases, perfect parents have lost rights to custody or upbringing of their children on the seemingly flimsy grounds. The trend is unreasonable and needs reform. 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Looked after Childrens Perspectives on the Children Act 1989,’ Journal of Social Welfare & Family Law, 28(2), pp.153-170 Read More