III: Development of the ‘Best Interest’ Test
The Children Act (1989) is the pinnacle of safeguarding and protecting the rights and welfare of children in England and Wales. Section 1(1) of the Children Act sets out the provision any question brought to court with respect to the ‘upbringing of the child…the child’s welfare shall be the court’s paramount consideration’ . In order to preserve this consideration the courts have adopted an objective, common law ‘best interest’ test to resolve disputes between parties. This test is custom to a number of areas in law namely Medical Law (withholding/withdrawing LSA, immunisations), Family Law (Adoption, Custody and Child Protection) and Education Law.
The ‘best interest’ test is a common law test …show more content…
In Re OT Justice Parker undertook a balancing exercise determining only ten factors would benefit the child whereas twenty six factors were found not in the best interests of the child. The Leeds journal discuss that McLean and Williamson ‘applauded’ the court for their deference to medical opinion due to their lack of expertise in making clinical judgements. In contrast looking at Bainham who is more concerned that the current objective test is eroding the rights of the child by turning life and death into a ‘lottery’ . Agreeing with Bainham’s view some propose that there is in fact a ‘palpable lack of sufficiently general rules’ . However looking to Loughrey and case law of Wyatt they would suggest a more moderate approach by the courts, taking into consideration parental views, medical opinions and ‘intellectual milestones’; providing a framework for judges to work towards. Gillian Douglas highlights that the difference in opinions could be ‘both the greatest strength and greatest weakness for the welfare principle’ . This is an interesting interpretation as it would suggest a dichotomy, where the lack of consistency and framework allows judges more flexibility when deciding the ‘best interest’ outcome for the child. However the alternative suggests the flexibility within the principle has allowed “too much or too little” flexibility and difficulty in labelling a real standard for determining best
The Children Act (1989) is the pinnacle of safeguarding and protecting the rights and welfare of children in England and Wales. Section 1(1) of the Children Act sets out the provision any question brought to court with respect to the ‘upbringing of the child…the child’s welfare shall be the court’s paramount consideration’ . In order to preserve this consideration the courts have adopted an objective, common law ‘best interest’ test to resolve disputes between parties. This test is custom to a number of areas in law namely Medical Law (withholding/withdrawing LSA, immunisations), Family Law (Adoption, Custody and Child Protection) and Education Law.
The ‘best interest’ test is a common law test …show more content…
In Re OT Justice Parker undertook a balancing exercise determining only ten factors would benefit the child whereas twenty six factors were found not in the best interests of the child. The Leeds journal discuss that McLean and Williamson ‘applauded’ the court for their deference to medical opinion due to their lack of expertise in making clinical judgements. In contrast looking at Bainham who is more concerned that the current objective test is eroding the rights of the child by turning life and death into a ‘lottery’ . Agreeing with Bainham’s view some propose that there is in fact a ‘palpable lack of sufficiently general rules’ . However looking to Loughrey and case law of Wyatt they would suggest a more moderate approach by the courts, taking into consideration parental views, medical opinions and ‘intellectual milestones’; providing a framework for judges to work towards. Gillian Douglas highlights that the difference in opinions could be ‘both the greatest strength and greatest weakness for the welfare principle’ . This is an interesting interpretation as it would suggest a dichotomy, where the lack of consistency and framework allows judges more flexibility when deciding the ‘best interest’ outcome for the child. However the alternative suggests the flexibility within the principle has allowed “too much or too little” flexibility and difficulty in labelling a real standard for determining best