The Principles and the Factors


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The principles and factors to be considered in child court hearings.

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The Principles and the Factors

  1. 1. Lecture 2 – Children Act 1989
  2. 2. Lesson Objectives:1. To be able to recap what parentalresponsibility is.2. To be able to understand and discuss theWelfare vs. Autonomy argument.3. To be able to list 3 principles and a minimumof 5 factors which are applied in courtproceedings when making a decision about achild’s upbringing.
  3. 3. Recap Test1. Who has parental responsibility immediately from the birth of a child?2. Does a father who is married to the mother, when the child is born, have parental responsibility?3. What kind of rights and duties does parental responsibility include?4. What happened in Leeds Teaching Hospital NHS Trust v A? Who are the parents? Who has parental responsibility?5. What was held in Gillick v West Norfolk and Wisbech Area Health Authority 1985?6. What did the court order in Re A (a minor) (Blood Transfusion) 1993? How does this demonstrate how the law has developed?7. In S v R (Parental Responsibility) 1993, the court ordered 3 rules which a father must satisfy in order to be granted PR. What are these grounds?8. Name a case where even if the grounds in S v R are satisfied, PR may still not be given? What was the courts reasoning in this case?9. Name the various people that can have PR?10. What are the advantages and disadvantages of several people having PR simultaneously?
  4. 4. The loss of parental responsibilityThere are several ways in which PR can be lost, andsituations where it cannot be lost. Discuss with theperson next to you/ share ideas (3 mins).1. PR that exists as a right of married parents/unmarried mother, can only be lost by adoption.2. PR acquired by registration on the birth certificate, court order or agreement can be ended by a court order. Entering into a marriage or civil partnership with someone other than the child’s other parent does not bring PR to an end.
  5. 5. What does not affect PR?1. PR is not lost because someone else later obtains it, even if this is a local authority under a care order; it is shared as described previously.2. PR cannot be given away, although a particular right/duty may be delegated to another person or body. For example, a boarding school will be entrusted with the duty not only to educate a child in its care but also to look after his day-to-day welfare.3. The GRA 2004 specifically provides that the acquisition of a new gender does not affect that person’s status as a father or mother. (Thus a man can be a mother and a woman can be father).
  6. 6. Activity Produce a diagram to reflect how many peoplecan acquire PR – and explain how. E.g. a Mother(automatic). A minimum of 7 examples must be shown. You have 5 mins
  7. 7. Guardian(s) appointed privately or by the court Father, if married to mother at the time of Adoptive parent(s)pregnancy, birth or from the court subsequently (automatic) Mother (automatic right) Father, by A person in whose agreement with favour a residence mother OR by order has beencourt order OR by made (from theregistration on the court) birth certificate Local Authority if child is in care (limited responsibility)
  8. 8. The child’s autonomyKey case?Gillick v West Norfolk and Wisbech AHA [1986] AC 112:M sought assurance that her daughters could not be givencontraceptive advice without her consent – AHA refused -, Mrs G sought declaration that the advice was wrong andinfringed her rights as a parent. She claimed that the right todecide whether they could or could not receive such advice(like the right to consent to medical treatment) was part ofher “parental rights”.What do you think? Do you think that Mrs G was right? Didthis infringe her parental rights? What about the child’srights?
  9. 9. Gillick – child’s autonomyThe HL held not. The parents’ authority “yields to thechild’s right to make his own decisions when he reaches asufficient understanding and intelligence to be capable ofmaking up his own mind on the matter requiringdecision” (Lord Scarman)The court did not say that Mrs G had no “right” – simplythat her “right” could be trumped by the child’s own“right” to decide (and when that happens is a question offact in each case). Gillick competency test arised. Whatwere the three factors that needed to be taken intoconsideration??
  10. 10. The PRINCIPLE applied in court proceedingsThe Children Act 1989 sets out three principleswhich the court should apply when making adecision about a child’s upbringing. These are:(1) The paramountcy principle s 191) CA 1989 – states that the child’s welfare shall be the paramount consideration in all proceedings which affect it.What does the term ‘paramount’ mean?
  11. 11. Re A (Minors)(Conjoined Twins: Medical Treatment) [2001] 2 WLR 480 CA.Take the above medical case:Twins were born joined at the abdomen. The heart of the stronger one was keepingthe weaker one alive. The parents were in agreement – they felt an operation toseparate the twins should not take place as the weaker twin would die. The hospitalthought that was wrong – the weaker twin had no real prospect of life and wouldendanger the other one – if the operation did not take place both were likely to diewithin months – if it did take place the weaker one would die immediately but thestronger one had a chance of life - so the hospital felt the operation should takeplace, even though the weaker twin would then die. The hospital applied to the court.What do you think is the paramount issue here?Ward LJ said parental rights and powers “exist for the performance of their duties andresponsibilities to the child and must be exercised in the best interests of the child.”Parents’ wishes are a weighty factor but “parental right is, however, subordinate towelfare”.Take note of the concept of “welfare”. We will look at that more closely, inconjunction with the idea of “rights”.
  12. 12. (a) The paramountcy principleIt has been questioned whether the paramountcyprinciple is compatible with Art 8 ECHR (right to life)which, read strictly, would seem to require abalancing of the interests of all the members of thefamily (adults and children) when their interestsconflict. The English courts have taken the view thatthere is no conflict between the two (RE B [2002])and the ECHR have stated that the welfare of thechild may justify an interference with parentalrights (Johansen v Norway [1997]). ***
  13. 13. “Welfare”, “Best Interests” and “Rights”CA 1989 s1(1) says that the child’s “welfare” is “paramount” in deciding any question in relation to the child (the “welfare principle”)“Paramount” means it overrides all other considerationsHL in J v C [1970] AC 668 held that “first and paramount”meant that the child’s welfare is the sole consideration. As theword “first” is otiose this is the settled understanding of“paramount”.Per L MacDermott it means “more than that the child’swelfare is to be treated as the top item on a list….*it is+ theparamount consideration because it rules upon or determinesthe course to be followed.”
  14. 14. J v C [1970] AC 668Child born in 1958 in England, of Spanish parents.M ill so child went to foster parents for 1 year. Thenwent to Spain with parents for 17 months. Thenreturned to the foster parents. Made a ward ofcourt and decision in 1965 that he remain with thefoster parents. When child was 10 theparents, who were now settled, asked for custody.The court felt a move to Spain now would beharmful. Even though the parents were“unimpeachable” and so normally would have theirown children, their wishes were to be looked at inthe light of the child’s welfare.
  15. 15. Welfare vs AutonomySo, if decisions are made with the child’s “welfare” as “paramount”, how doesthis tie in with the child’s increasing right to self-determination (autonomy) asper Gillick?If the child has the “right” to decide, then can the state override that decisionon the basis of “welfare”? And, if so, what is “welfare”? – and who decides?The case of Mabon v Mabon demonstrates the increasing tendency to hearthe child’s voice during legal proceedings. Here, the mother took the 3youngest children and the father took the three eldest. The three eldest, aged17, 15 and 13, wanted to instruct a solicitor and have their voice heard in theproceedings. This meant they would have access to all the proceduraldocuments which the court thought might be harsh on children, and wasoriginally not allowed. However, the children appealed, and the CA orderedfor separate representation. The children knew the issues and had a right toparticipate, referring to Article 12 – right to freedom of expression, whichoutweighed the paternalistic judgement of ‘welfare’. It was also held that forolder, articulate children, to deny them the right to be heard would damagetheir ‘welfare’ in itself.
  16. 16. The PRINCIPLES applied in court proceedings(2) The no order/non-intervention principle – under s195) CA1989 a general principle of non-intervention is stated. Thecourt should not make an order unless it is satisfied that to doso will be better for the child than making no order at all.Under the no order/non-intervention principle the court willmake an order only if it strictly necessary. For example, it isnot necessary to make a residence or contact order on divorceunless there is a dispute between the parents over thechild, or one parent appears likely to take the child out of thejurisdiction for any length of time. However, an order may bemade where there is agreement between the parties toprevent future difficulties where they might reasonably beanticipated.
  17. 17. The PRINCIPLES applied in court proceedings(3) The avoidance of delay principle s1(2) CA 1989provides that the court should have regard to thegeneral principle that any delay in determining aquestion with respect to the upbringing of a child islikely to prejudice the child’s welfare.To promote this principle, the CA 1989 requires thatcourt to set a timetable for children proceedingsand not to permit any hearing to end withoutanother court date being set (until final resolution).
  18. 18. The FACTORS applied in court proceedingsS.1(3) CA 1989 contains a checklist of the factors that the court should takeinto account in certain proceedings involving children, including those for as.8 order (residence, contact, prohibited steps, and specific issue orders).The factors include the following:(a) The wishes and feelings of the child concerned, in the light of his age andunderstanding.The views of the children must be taken into account in light of their age andmaturity. Inevitably, the older a child, the more likely it is that his views willbe taken into account and even determine the issue. In Re S (Children’sViews) [2002] the court refused to make an order for contact relating to twochildren aged 14 and 16, who stated that they did not wish to see their father.What key case can you think of that relates to the child’s autonomy?
  19. 19. (b) The child’s physical, emotional andeducational needsThe court will look at the need forfood, warmth, stability and affection as well asthe child’s age, health and educationalbackground. Wherever possible, brothers andsisters should stay together. The court alsoconsiders that the child’s emotional need forcontact with both parents and will take intoaccount which parent is most likely to facilitatethis.
  20. 20. © The likely effect on the child of any change in hiscircumstances.The court will generally be reluctant to move a child fromfamiliar surroundings, especially if he is settled and happy.However, in a number of recent cases the courts havetransferred the residence of children where the parent withwhom they were living was preventing contact with the otherparent – Re S and Others (2008):The local Authority were seeking a Care Order relating to thefifth child of a couple. The first four children were already thesubject of Care Orders. As part of that history there werereports and records relating to possible sexual misconduct bythe father containing two cautions; two prosecutions resultingin two acquittals; and various other complaints and assertionswhich had never been the subject of any criminal or familyproceedings.
  21. 21. (d) Any harm which the child has suffered or isat risk of suffering.This includes not only physical abuse, but alsoanything else that might impair the child’sdevelopment, such as a parent’s alcoholism ordrug use. ‘Harm’ also includes impairment fromseeing or bearing the ill treatment of another.Thus, it is expressly recognised that children canbe harmed by seeing violence between theirparents.
  22. 22. (e) The child’s age, sex, background and anycharacteristics which the court considers relevant.This allows the court to focus on issues such as raceand religion as well as matters of day-to-day care. Ifone parent adopts an unorthodox lifestyle, then thiswill be taken into account. The court will not decidebetween two competing lifestyles but will focus onthe effect, if any, they may have on the child (e.g.estrangement from other members of the family, orlimited or no resort to medical treatment: M v H(Education Welfare) [2008].
  23. 23. M v H (Education Welfare) [2008]A specific issue arose under a joint residence arrangement asto whether a young child should be educated in England andtherefore spend the majority of his time living with his fatheror in Germany with his mother who has become a Jehovah’sWitness. The held the mother’s beliefs and practices werefactors which favoured the child going to school in Englandparticularly in relation to parties and Christmas and in termsof the range of social relationships open to the child.Although there is no precise rules, the courts usually decidethat young children are best protected by staying with theirmother. It is not unusual for older children to be allowed tolive with their father.
  24. 24. (f) The capability of the child’s parents, or anyoneelse that the court considers relevant to meet thechild’s needs.This factor is considered in conjunction with thechild’s physical, emotional and education needs andrequires a decision as to which of the parties will bebest able to care for the child. This will be judged bytheir perceived ability to provide a stable home andpresence for the child, rather than by the parents’conduct towards each other, although the court willtake into account the extent to which each is willingto promote contact with the others. If one parenthas a new partner, that partner’s parenting abilitieswill also be considered.
  25. 25. (g) The range of powers available to the court under CA 1989 in those particular proceedings. The checklist is not exhaustive and the court can take into account any other factors which appear to be relevant. No order/non- The paramountcy The checklist of Avoidance of intervention principle principle factors delayChild’s Child’s Likely Harm, Age, sex, Range Capabilitywishes needs effect of actual or backgrou of of parentsand change in potential nd and court’sfeeling circumsta other powerss nces characteri stics
  26. 26. Recap Test1. What are the 3 principles applied in court proceedings needed to be considered for a child’s upbringing?2. What are the 7 factors applied in court proceedings when considering a child’s upbringing?3. Explain what is meant by paramountcy, welfare, and autonomy in relation to the CA 1989.4. Discuss the Welfare vs Autonomy argument.