Family

Front 1

Describe Section 1 of the Children

Back 1

(1)When acourt determines any question with respect to—

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application ofany income arising from it,

thechild’s welfare shall be the court’s paramount consideration.

Front 2

Is the paramountcy principle found in the Children's Act universally applicable across family law?

Back 2

No-
e.g. PartIV of the Family Law Act 1996 where there is a comprehensive scheme forregulating occupation of the family home in cases of domestic violence, and thestatute sets out specific criteria that must be applied in such cases.

Sometimesstatutory provisions expressly exclude paramountcy e.g. matrimonial cause Act1973, s 25(1)- childs inters are first consideration but not paramount.

Front 3

If there is more than one child, what case and ratio do you cite to show that

Back 3

Birmingham City Council v H (A Minor).

Thecase involved a 14 year old girl, M who applied for contact to see her baby boyR. The local authority used the Children’s act to prevent that contact- therewas evidence of poor treatment. The court had to decide which of the children’swellbeing was to be prioritised.

Thedifferent courts took different approaches.

ConnellJ held that R’s welfare was paramount, and granted the council permission torefuse contact.

TheCourt of Appeal said that the issue of contact required a weighing in thebalance of the respective interests of M and R. The court allowed contact. (In Re A (Children)(Conjoined Twins: SurgicalSeparation) [2001] a court followed up on this reasoning, although thecircumstances were exceptional).

TheHouse of Lords unanimously restored Connell J’s order. Rather than issuing a judgement with a clear principle. Theydecided the issue as a matter of construction… doh!

Front 4

What principle can be found in 1(2)?

Back 4

2) In any proceedings in which any question with respect to theupbringing of a child arises, the court shall have regard to the generalprinciple that any delay in determiningthe question is likely to prejudice the welfare of the child.

Front 5

Where can the no delay principle be found?

Back 5

Section 1(2)

Front 6

Section 1(3) contains what?

Back 6

The welfare checklist

(a) the ascertainable wishes and feelingsof the child concerned (considered in the light of his age and understanding);(b) his physical,emotional and educational needs;(c) the likely effect onhim of any change in his circumstances;(d) his age, sex,background and any characteristics of his which the court considers relevant;(e) any harm which hehas suffered or is at risk of suffering;(f) how capable each of his parents, andany other person in relation to whom the court considers the question to berelevant, is of meeting his needs;(g) the range of powersavailable to the court under this Act in the proceedings in question. ��B��N�if#�

Front 7

Section 1(5) contains what

Back 7

The No Order principle-

(5) Where a court is considering whether or not to make one ormore orders under this Act with respect to a child, it shall not make the orderor any of the orders unless it considers that doing so would be better for thechild than making no order at all.

Front 8

Why was the no-order principle in section 1(5) introduced and who recommended that it should be?

Back 8

The Law Com suggested it's incorporation in order to stop the court from handing out unnecessary judgements

Front 9

Re G (Children) [2005]

Back 9

a case was brought overwhether a judge should have given an order (though he did not) on the basisthat it was necessary to give piece of mind to the mother who was worried that thefather might go back on the agreement, which was negotiated with difficultly.

The court gave judgement forthe mother for three reasons

1. It provided peace of mind to the mother, and so conducive toproducing stability in the kids lives

2. It was good for the kids to dissipate anger/mistrust betweenparents

3. A court should respect a parents view in this case…

Front 10

Definition of welfare?

Back 10

Re G (Education: Religious Upbringing) [2012] Munby LJ:

‘Welfare’…extends to and embraceseverything that relates to the child's development as a human being and to thechild's present and future life as a human being. The judge must consider thechild's welfare now, throughout the remainder of the child's minority and intoand through adulthood… How far into the future the judge must peer – and withmodern life expectancy a judge dealing with a young child today may be looking to the22nd century – will depend upon the context and the nature of the issue.

Evaluating a child’s bestinterests involves:taking into account, where appropriate, a widerange of ethical, social, moral, religious, cultural, emotional and welfareconsiderations. Everything that conduces to a child's welfare and happiness orrelates to the child's development and present and future life as a humanbeing, including the child's familial, educational and social environment, andthe child's social, cultural, ethnic and religious community, is potentiallyrelevant and has, where appropriate, to be taken into account. The judge mustadopt a holistic approach.

Front 11

What was the case of Re G (Education: Religious Upbringing) [2012] about...?

Back 11

The case involved parents where the parents werepart of the Chassic community of ultra-Orthodox Jews. The mother disagreed withthe father as to how the children should be raised and whether they should be apart of that community. The court award custody to the Mother and allowed themother’s education ideas to go ahead over the father’s.

Munby LJ- judge should act as a ‘judicialreasonable parent’. The task is to ‘recognise that equality of oppourtunity isa fundamental value of our society’; to ‘foster, encourage and facilitateaspiration: both aspiration as a virtue in itself and, to the extent that it ispractical and reasonable, the child’s own aspirations’ and ‘to maximise thechild’s opportunities in every sphere of life as they enter adulthood’- thejudge must be careful about approving a regime ‘which may have the effect offoreclosing or unduly limiting the child’s ability to make such decisions infuture'.

Front 12

J v C[1970]

Back 12

Good story. This case involves a child who by an arrangement isbrought up in England by foster parents because the true parents were at onetime living in ‘slum-like’ conditions. When the true parents raise theirstation and consequently want the child back, all of the courts decide that thechild should stay with the foster parents… ooh!

The Paramountcy principle doesn’t just apply to custody disputesbetween parents, but also between parents and third parties.

Lord MacDermott

Paramountcy “means more thanthat the child's welfare is to be treated as the top item in a list of itemsrelevant to the matter in question. I think they connote a process whereby whenall the relevant facts, relationships, claims and wishes of parents, risks,choices and other circumstances are taken into account and weighed, the courseto be followed will be that which is most in the interests of the child'swelfare as that term has now to be understood. That is the first considerationbecause it is of first importance and the paramount consideration because itrules upon or determines the course to be followed”.

There is no presumption that the natural parents are the peoplewho should bring up the child! Bit controversial.

Front 13

Re KD (A Minor)(Ward: Termination of Access)[1988]

Back 13

The case involved mother who was separated from her child. Thelocal authority wanted to deny contact for fear of suffering harm to the boy’sdeveloping relationship with his foster parents.The mother argued that a natural parent has a legal right to havecontact with his or her child which must prevail where there is no positiveevidence that contact will be damaging (based on Article 8 of the ECHR).Lord Oliver, delivering the unanimous leading judgement, held thatthe rulings of the ECtHR and the paramountcy principle as expressed in J v Cdid not contradict one another. The next case is even better������N�>|"o

Front 14

Re B (A Minor) (Wardship: Sterilisation) [1988]

Back 14

Should a 17 year old girl of limited intelligence be sterilised toprevent her getting pregnant, having to have a C section and then open up herwounds?

'Theprimary and paramount question is only whether they are for the welfare andbenefit of this particular young woman situate as she is situate in this case.This case is not about sterilisation for socialpurposes; it is not about eugenics; it is not about the convenience of thosewhose task it is to care for the ward or the anxieties of her family; and itinvolves no general principle of public policy. It is about what is in the bestinterests of this unfortunate young woman and how best she can be given theprotection which is essential to her future well-being so that she may lead asfull a life as her intellectual capacity allows'.

Front 15

Re H (A Minor) (Custody: Interim Care and Control) [199] Lord Donaldson-

Back 15

The welfare principle should be applied with ‘a strong supposition that,other things being equal, it is in the interests of the child that it shallremain with its natural parents. But that has to give way to particular needsin particular situations’.

Front 16

Re G (children) (Residence: Same-sex Partner) [2006]

Back 16

nvolved lesbian partners who argued over the residential arrangementsof children they had looked after together. What weight should be given to thefact that one of the parties was the natural and legal parent of the child andthe other was not?

Lady Hale set out the law in J v C and then quoted the position of LordDonaldson. She said there was ‘no question of a parental right’.

Front 17

Who did Lady Hale cite with approval in the case of Re G (children) (Residence: Same-sex Partner) [2006]?

Back 17

Lindenmayer J in Hodak v Newman [1993] from Australia-

[T]he fact of parenthood is to be regarded as animportant and significant factor in considering which proposals better advancethe welfare of the child. Such fact does not, however, establish a presumptionin favour of the natural parent, nor generate a preferential position of thenatural parent from which the court commences its decision making process.

Front 18

What did Lord Nicholls say in Re G (Children) (Residence: Same-sex Partner [2006] which caused trouble later on?

Back 18

Inreaching its decision the court should always have in mind that in the ordinaryway the rearing of a child by his or her biological parent can be expected tobe in the child's best interests, both in the short term and also, andimportantly, in the longer term. I decry any tendency to diminish thesignificance of this factor. A child should not be removed from the primarycare of his or her biological parents without compelling reason. Where such areason exists the judge should spell this out explicitly.

Front 19

Re B (A child) (Residence) [2009]

Back 19

Lord Nicholls dicta above caused confusion. They had to restate thepoint.

Allconsideration of the importance of parenthood in private law disputes aboutresidence must be firmly rooted in an examination of what is in the child'sbest interests. This is the paramount consideration. It is only as acontributor to the child's welfare that parenthood assumes any significance. Incommon with all other factors bearing on what is in the best interests of thechild, it must be examined for its potential to fulfil that aim. �K�~L"�