BEST INTERESTS OF THE CHILD/WELFARE PRINCIPLE

Family Law Class Presentation by Annie M. Adikin, Edisa Longo and Soki Hilda.

ANNIE M. ADIKIN

1. INTRODUCTION

The best interests of the child/welfare principle provides that in all matters
relating to children, the welfare and the best interests of the child shall be
paramount.

Lord McDermott in J v C [1970] AC 668 at pg 710 observed that,

“Welfare connotes a process whereby, when all the relevant facts, relationships,
claims, and wishes of parents, risks, choices and other circumstances are taken
into account and weighed, the course to be followed will be that which is most in
the best interest of the child’s welfare. A paramount consideration means a
consideration which rules upon or determines the course to be followed.”

The rationale behind the best interests of the child principle is to ensure the full
and effective enjoyment of the rights that a person is entitled to and the holistic
development of the child which encompasses the child’s physical, mental,
spiritual, moral, psychological and social development.

2. UGANDA’S LEGAL REGIME AND THE WELFARE PRINCIPLE

The 1995 Constitution of the Republic of Uganda through its Article 34

embodies the spirit of the best interests of the child principle through its
provision for upbringing of children by their parents, entitlement to basic
education, protection from social or economic exploitation among other rights.

Section 3 of the Children (Amendment) Act, 2016 provides for the welfare
and guiding principles. It states that:

1) The welfare of the child shall be of paramount consideration whenever the

state, a court, a tribunal, a local authority or any person determines any
question in respect to the upbringing of a child, the administration of a
 child’s property, or the application of any income arising from that
administration.
2) In determining any question under subsection (1), court or any other person
shall have regard to
a) the ascertainable wishes and feelings of the child concerned, with due
regard to his or her age and understanding;
b) The child’s physical, emotional and educational needs;
c) The likely effects of any change in the child’s circumstances;
d) the child’s sex, age, background and any other circumstances
relevant in the matter;
e) any harm that the child has suffered or is at the risk of suffering;
f) where relevant, the capacity of the child’s parents, guardian or any
other person involved in the care of the child, and in the meeting the
needs of the child.

3. INTERNATIONAL LAW AND THE WELFARE PRINCIPLE

The welfare principle is enshrined in various human rights instruments for

example the Convention on the Rights of the Child(CRC), International
Convention on Civil and Political Rights(ICCPR), The Convention on the
Elimination of All Forms of Discrimination Against Women(CEDAW), Convention
on the Rights of Persons With Disabilities, Article 4 of the African Charter on the
Rights and Welfare of the Child.

This principle has moved beyond the confines of treaty law and acquired the
status of a general principle of international law to cover instances where
international treaties do not expressly provide for it. The European Court of
Human Rights in the parental child abduction case of Neulinger and Shuruk v
Switzerland held that “there is currently a broad consensus including in
international law in support of the idea that in all decisions concerning children,
their best interests must be paramount."

2
The Convention on the Rights of the Child under Article 3(1) provides for
the primary consideration of the best interests of the child in all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies in a
State.

The Committee on the Rights of the Child in its General Comment No.
14(2013) on the Convention on the Rights of the Child acknowledged the
complexity of the best interests of the child principle. It is incapable of precise
definition and there is need to determine it on a case-by-case basis. It is only
through implementing and interpreting it together with other provisions of the
Convention that it can clarified and made good use of.

The best interests of the child is a flexible and adaptable concept. It should be
adjusted and defined on an individual basis, according to the specific situation
of the child or children concerned, taking into consideration their personal
context, situation and needs. For individual decisions, the child's best interests
must be assessed and determined in light of the specific circumstances of the
particular child.

The flexibility of the best interests of the child principle enables decision makers
to consider the evolving capacity of the child and to be responsive to their ever-
changing needs.

The elements of the Best Interests of the Child Principle as provided for under
paragraph 52 of the aforementioned General Comment include;

a) The child’s views.

b) The child’s identity
c) Preservation of the child’s environment and maintaining relations.
d) Care protection and safety of the child
e) Situation of vulnerability
f) The child’s right to health
g) The child’s right to education

3
Article 3 of the Convention on the Rights of the Child imposes on states a
strong legal obligation to ensure that in all matters that affect children within
their jurisdiction, the best interests of the child is the primary consideration.
General Comment No.14(2013) at para. 14 provides that this obligation is
three-fold. The obligation to ensure that:

a) Appropriate integration and consistent application of the welfare principle

in all actions of public institutions that directly or indirectly impact
children within a state.
b) All judicial and administrative decisions as well as policies and legislation
concerning children demonstrate that the child's best interests have been
a primary consideration.

c) The interests of the child have been assessed and taken as a primary
consideration in decisions and actions taken by the private sector,
including those providing services, or any other private entity or
institution making decisions that concern or impact on a child.

General Comment No.14(2013) at para. 6 also provides that the best interests
of the child principle is a three-fold concept:

a) A substantive right: The right of the child to have his or her best interests
assessed and taken as a primary consideration when different interests
are being considered in order to reach a decision on the issue at stake,
and the guarantee that this right will be implemented whenever a decision
is to be made concerning a child.
b) A fundamental, interpretative legal principle: If a legal provision is open
to more than one interpretation, the interpretation which most effectively
serves the child’s best interests should be chosen.
c) A rule of procedure: Whenever a decision is to be made that will affect a
specific child(ren), the decision-making process must include an
evaluation of the possible impact (positive or negative) of the decision on
the child(ren) concerned.

4
General Comment No. 17(2013) on the Convention of the Rights of the Child
at para.17 provides that the best interests of the child principle must be
considered in all legislative, policy and budgetary measures, as well as measures
relating to environmental or service provision, which are likely to impact on the
rights of the child to rest, leisure, play, recreational activities, cultural life and
the arts.

Similarly, the Committee on the Rights of the Child in General Comment

No.5(2003) on the Convention on the Rights of the Child at para. 12 provides
that the best interests of the child should be a guiding principle for states in the
promoting children’s rights and effectively implementing the Convention on the
Rights of the Child.

4. APPLICATION OF THE WELFARE PRINCIPLE

4.1 Domestic Courts

Courts in Uganda have duly held the welfare principle in paramountcy in all
decisions that affect the wellbeing of children such as guardianship, adoption,
custody, foster care e.t.c

RE ADRIKO REUBEN(A MINOR) (Miscellaneous Civil Application No. 8 of

2016).

A father applied for guardianship in respect of his biological son with whom he
was a joint tenant on land that he had purchased and registered in their names.
Being desirous of disposing of that property and using the proceeds of sale for
his well-being and that of his said son, a grant of a guardianship order was a
prerequisite.

The issue for determination before the court was whether granting guardianship
to dispose of the property was in the best interests of the child.

The Justice Stephen Mubiru held that

“where the legal property rights of a child are involved, yet by virtue of his status
as a legal incompetent, the child does not have the capacity to safeguard those

5
rights on his own, courts are expected to exercise a parens patriae authority. A
judge is required to make an independent assessment of these interests, to
prioritize them above the competing interests of adult claimant, and to make orders
most likely to safeguard and promote these interests. The Judge acting as parens
patriae is responsible for protecting the interests of children in matters that come
before him or her. The Judge is obligated to do what is best for the interest of the
child. He is to put himself in the position of a wise, affectionate and careful parent
and make provision for the child accordingly.”

Upon satisfaction that the applicant would use the proceeds of the sale for the
well-being of the child, the court granted him a conditional guardianship.

BAGUMA V MBABAZI (HCT-00-CV-CA 3 of 2016) [2017] UGHCFD 4 (23

March 2017)

A misunderstanding arose between a mother also respondent and her husband

also appellant which led to her arrest. In her absence, the appellant evicted their
two children out of his house and took them to a relative of the respondent. Upon
being released, the respondent instituted a matter for custody, shelter and
maintenance of the children. A custody order was granted in addition to an order
for eviction of the appellant from his house where he stayed with his other
children. The respondent therefore instituted this appeal.

The issue before the court was whether the the learned trial erred in law in
granting custody of the children to the Respondent.

In resolving the issue, Justice Oyuko Ojok noted that granting of custody is
guided by the welfare principle as provided for under Section 3 of the
Children’s (Amendment) Act 2016.

In applying the welfare principle, the learned judge found that the trial judge
had ably a considered the welfare of the child in his decision. The trial
Magistrate was mindful of the children’s needs and in his judgement had asked

6
the children whom they wished to stay with, they expressly stated that their
preference was with the Respondent.

The judge citing the case of Anne Musisi versus Herbert Musisi [2008] KALR
594 observed that the welfare of the children is served better where both
parents are involved in the upbringing of the children. The principle of welfare
of children is paramount and supersedes considerations such as who of the
parents has a superior right to the children.

However, in situations where the child is of tender years, the judge cited
Justice Ntagoba’s judgement in the case of Samwiri Massa versus Rose Achen
[1978] HCB 297, where he observed that,

“It’s trite law that where issues of custody of child is between the father and its
mother and taking into account the paramount interest of the child, custody of
such child, especially when it’s of tender years must be granted to the mother…”

The judge also held that the Appellant was not a fit custodian as his conduct
was wanting. He had threatened own children before Court, evicted his own
children, abandoned them when their mother was in prison. Granting him
custody would thus not be in the best interests of the children.

The judge entered judgement for the respondent and upheld the decision of the
Trial Court.

4.2. Common Law Position

By EDISA LONGO

WATSON VS. NIKOLAISEN [1955] 2 ALL ER 427

The lady’s illegitimate 4-year-old daughter had been living in the sole care of the
plaintiffs, a married couple she was friends with for 3 years. Since the couple
intended to relocate, they were advised to formally file for adoption in the town
they were moving to. During her stay with the plaintiffs, the mother never once
provided financially for her, and her only visit was initiated by the plaintiffs. She

7
had earlier granted to the plaintiffs in writing, but did not know that she could
have withdrawn her consent at any time before the adoption order was made
final. On initiating adoption proceedings, the child’s biological mother withdrew
her consent, leading to the dispute at hand.

Arguments

Plaintiffs’ counsel submitted that due to her relationship history, she was not fit
to cater the child’s best interest (read welfare), noting that she was an unmarried
woman cohabiting with her boyfriend, which was considered immoral in society
then. They argued that parental consent could be dispensed with since the
defendant had abandoned the child.

It was the defendant’s position that she had not abandoned her child but was
still fond of her, and her nervous condition was because she regretted giving up
her child in the first place.

Issues

a) Was her lack of consent unreasonable?

b) Had the defendant abandoned the child?

Holding

In resolving the issue on lack of consent, Goddard CJ noted that the argument
of whether adoption was in the child’s best interest was inapplicable, since in
adoption unlike custody cases, welfare wasn’t the primary consideration in
allocating parental rights. (Cited Hitchcock vs. WB) Her lack of consent was held
to be reasonable under the circumstances

On the second issue, it was held that despite her lack of visitation, she had not
abandoned the child, and she genuinely desired that the child should remain
hers and not be adopted.

Under the UK Adoption Act, if a parent has 1) abandoned 2) neglected 3)

persistently mistreated their child, their consent may be dispensed with by a
court in such proceedings.

8
Abandonment means leaving a child to their own devices. Since defendant had
handed her over to a caring family, she had not abandoned the child within the
meaning of the law. The adoption order was denied.

Analysis

In adoption proceedings, courts will prefer to vest parental rights in the biological
family. However, in custody proceedings, the child’s best interest is given higher
consideration.

If the above case had been a custody battle, the Watsons would have won
custody.

The courts have not given a strict meaning to ‘unreasonably withholding consent’
to give room for flexibility and discretion I future decisions by court.

HITCHCOCK VS. WB & FEB [1952] 2 ALL ER 119

After the mother of a 2-year-old boy separated from her husband, she denied
him any access to their son, including concealing their whereabouts when he
wanted to provide for the child. The father, despite a past criminal record for a
series of petty thefts, aimed to live an upright life and raise his child. He had no
permanent home, but hoped to put the boy in a nursery home where he could
contribute to his maintenance until such time as he was stable.

Issue

Was the father’s denial of consent unreasonable?

Holding

The central issue was whether consent was unreasonably withheld, rather than
the welfare/best interest of the child, but in the judge’s dictum, he delved into
the father’s ability to serve the child’s best interest. The justices found that the
father had always wanted the infant to remain his child, and that he wished to
carry out his parental duties to the infant. The father’s denial of consent was
held to be unreasonable.

9
Analysis

The parental duty to ensure a child’s best interest can be fulfilled:

Directly: monetary contribution towards their welfare, building, buying, or

renting a house where they can sleep, taking them to school

Indirectly

a) Leaving them in the guardianship of people who will provide for them e.g.
the mother in Watson vs. Nikolaisen.
b) Temporary placement in nursery homes/orphanages, such as the father
in this case (Hitchcock), with the aim of providing for them throughout
their stay, and removing them when one’s finances stabilize.

RE M [1955] 2 ALL ER 911

After separating with his wife, a man entered into a relationship with his
girlfriend whom he cohabited with for 11 years. The product of this relationship
was a child, whom his ex-girlfriend sought to formally adopt with her new
husband. The child’s father objected to this, of course, leading the parties to
court.

Issue

a) Being unmarried, was the father considered a parent in the legal sense?
b) Could the father’s consent be dispensed with in granting the adoption
order?

Holding

The term parent in England’s law at the time did not include the father to an
illegitimate child.

Since he had no parental rights, his consent was immaterial to the procedures,
and the adoption order was granted.

10
Analysis

In reading this case, we must consider the social situation at the time. The
biological father in this scenario had entered into a relationship with a younger
woman while still legally married (he and his wife were simply separated) and
cohabited with her long-term, and had a child as a result.

While the UK Adoption Act was silent on the definition of a parent, the UK
Children’s Act of 1948 defined a parent of an illegitimate child as its mother,
because that was the one parent who could be naturally ascertained from birth.
That informed the decisions in cases such as Butler vs. Gregory to read the
term ‘parent’ in a legal sense, to the exclusion of ‘illegitimate’ fathers.

The best interest of this child was ignored, simply because of the situation they
were born into. This conservative outlook negatively affected the rights of
children born out of wedlock, and the rights and responsibilities of able parents
in such scenarios.

Thankfully, this position has been discarded in both England’s and Uganda’s
laws, in light of more rights-based outlooks influenced by the UN Charter on
the Rights of the Child, and the African Charter on the Rights and Welfare
of Children which provide that in all legal decisions by courts, the best interest
of the child must be considered, though the African Charter gives best interest
more importance than the CRC.

By SOKI HILDAH

5. CONCLUSION

Conclusively, best interest of a child principle is the doctrine used by most

courts to determine a wide range of issues relating to the well-being of children.

Most issues concern questions that arise upon the divorce or separation of
children’s parents the best interests of a child are put into consideration.

• With whom will the child live?

11
 • How much contact (previously termed “access” or in some jurisdictions,
“visitations” will the parents, legal guardian or other parties be allowed to
have?
• To whom and by whom will child support be paid and in what amount?

12