Welfare – Essay

‘Children’s legal right remain contingent upon parental control and the discretion of the courts’. The
time has come for a legally binding Charter of Children’s rights.

Do you agree? Illustrating your answer from case law. Critically assess the case for and against a
formal statement of children’s rights.

Introduction

Welfare is the cornerstone of law in determining a child’s right. There can be no decision
affecting a child’s upbringing without considering the child’s right. It is agreeable the time has come
for a legally binding Charter of Children’s rights. It will be discussed further below.

What is welfare?

• The welfare of the child is the paramount consideration.

• Section 1(1) CA 1989 – allows the courts to determine any question with respect to
the upbringing of the child.
• The administration of the child and the application of it.
• Re-Agar Elis. LJ Bowen stated that the principle was a by- product of struggle to
equalize the position of mother and father in relation to guardianship of the
children.
• Re G – Welfare extends to and embraces everything that relates to a child’s
development as a human being and to the child’s present and future life as a human
being.

The welfare checklist

• S.1(3)(a) – Wishes and feelings of the child

❖ The child’s wish and feelings will take according to S.176(2) Education Act 2002, and
sections 17(4A) and 47(5A) Children Act 1989 = ‘ in the educational provision, which
the authority considers appropriate and proposed to make available, to meet the
educational needs and non-educational needs.
❖ Re J – although wish of the child is paramount, it is not given priority over other
factors on the list is ‘ascertainable’.
❖ Welfare office can child’s relative and friends for their views.

• S.1(3)(b) – Physical, emotional and educational needs

❖ Re K – father let the child when mother left him to be another man
❖ Conduct no place in question of custody of the child.
❖ Court preferred care of the child to be undertaken by one person on a full time-basis
❖ Emotional needs to become a factor when parent’s attitude
❖ May v May – Mother and father divorced and care given to the father as his stricter
regime was more appropriate in terms if the education.
S.1(3)(c) - Likely effect on him of the change of circumstances

❖ Re B – Trial judge critised for ordering child’s residence be changed on speculative hope.
❖ Unless there is a good reason, the child should not be left there.
❖ The child’s physical, emotional and educational needs in terms of the child’s health
developmental and learning difficulties which call for special provision, as assessed by the
authority or the nature of the disability is she is disabled.
❖ The objectives the special provision for the child should aim to meet as the likely effect of
the proposed change in circumstances on the child.

S.1(3)(d) – Age, sex, background characteristics which court to consider relevant.

❖ Younger children often need one permanent primary carer whereas the older, children
can cope living with either parent.
❖ Religious belief will generally not affect decision unless there is a potential harm to child.
❖ S.22(5) CA 1989 – List of factors that local authority must consider when placing children.
Religious persuasion, racial origin, cultural background and linguistic background.
❖ The relevant factors of the child’s [resent circumstance and demographic background for
the provision of the services for preventing neglect and abuse.

S.1(3)(e) – The harm the child has suffered or is at risk of suffering

❖ This section describes the impairment to the child’s health and development or ill treatment
she has suffered, and the impairment of parental function as a cause of hazard presenting a
risk of the child suffering further of significant ill treatment or impairment of health and
development.

S.1(3)(f) – Range of powers available to the court under this act.

❖ The court will grant orders according to the child’s need

❖ How capable is each family member of using the provision specified in Part 1, in
correcting the impairment of parental function so as to give the child the care that it
would be reasonable to expect a parent to give to a similar child in meeting, the child’s
needs as specified.

What does paramount mean?

• The HRA 1998 required courts to reinterpret the word ‘paramount’ in s.1 mean primary,
so the court can take due account of interests of parents and others.
• J v C – Guardianship of Infants Act 1925

Welfare reform

• The House of Lords of the rule of the ‘Gillick competent child’, the concept of children’s
right has become even more forceful with the advent of the Human Rights Act 1998
incorporating the provisions of the European Convention on Human Rights.
• Article 8 protects your right to respect for your private life, your family life, your home
and correspondence – The courts have interpreted the concept of ‘private life’ very
broadly.
 • The court held that where a medical professional withheld information relating to advice
or treatment of a young person on sexual matters, there was no infringement of a
parent’s Article 8(1) rights.
• A young person was equally entitled to a respect for his or her confidential health data.
• As Lord Fraser stated in Gillick “the parental rights to control a child do not exist for the
benefit of the parent. They exist for the benefit of the child and they are justified only in
so far as they enable the parent to perform his duties towards the child”.
• Article 8(1) and Article 8(2) has been of importance here can be demonstrated in the
case of R (Axon) v Secretary of State for Health - The court held that where a medical
professional withheld information relating to advice or treatment of a young person on
sexual matters, there was no infringement of a parent's Article 8(1) rights. A young
person was equally entitled to a respect for his or her confidential health data.

Why is Gillick competence important

• The case of Gillick plays an important role under child’s law. Minor children under 16 are
considered as competent has the right for decision to claim for medical treatment. This
landmark case allows minor the opportunity to refuse any life-threatening treatment.
• For an example, if a child or a young person (minor) wishes to have a support but doesn’t
want their parents or carers to know about it
• Minors who wish to seek confidential support for substance misuse.
• Has strong wishes about their future living arrangements which may conflict with their
parent’s view.
• Medical professionals need to consider Gillick competency if a young person under the
age of 16 wishes to receive treatment without their parents' or carers' consent or, in
some cases, knowledge.
• If the young person has informed their parents of the treatment, they wish to receive
but their parents do not agree with their decision, treatment can still proceed if the child
has been assessed as Gillick competent.

Facts

• Mrs. Gillick was a mother of five children

• One of her children was still too young to legally consent to intercourse
• She sought and received a contraceptive counsel from a local doctor.
• This recommendation was made in accordance with instructions from the Departments of
Health and Social Security,
• Mrs. Gillick asked the court to declare the Department’s guidance was unlawful as.
• Amongst other things, it adversely interfered with parental rights and duties.

Issues

• Gillick was a significant ruling that brought up numerous challenging legal problems.
• The HOL was asked to decide, first and foremost, the scope of parental scope of parental
control over a minor child and whether or not a minor child and whether they are allowed to
consent to medical treatment or obtain the contraceptive counsel against the wishes or
knowledge of their parents.
• The final question was to determine whether a doctor, in exercising his or her clinical duty
would be guilty of a criminal offence by providing contraception or advice to underage
Decision

• The application for a declaration was dismissed.

• It is essential to protect a minor’s best interest, parental rights as such did not exist.
• A minor could occasionally be able to give permission on their own behalf without their
parents’ knowledge or consent.
• According to Lord Scarman’s proposed standard, a minor can provide consent to treatment if
they show sufficient understanding and intelligence to fully understand what is proposed.
• The test is known as “Gillick competence”
• It is a crucial component of both medical and family law

Assessing Gillick competence

• There is no set of defined questions to assess Gillick competency.

• Professionals need to consider several things when assessing a child's capacity to consent,
including:
the child's age, maturity and mental capacity
their understanding of the issue and what it involves - including advantages,
disadvantages and potential long-term impact
their understanding of the risks, implications and consequences that may arise from
their decision
how well they understand any advice or information they have been given
their understanding of any alternative options, if available
their ability to explain a rationale around their reasoning and decision making.
• Gillick competency and Fraser guidelines help people who work with children to balance the
need to listen to children's wishes with the responsibility to keep them safe.
• When practitioners are trying to decide whether a child is mature enough to make decisions
about things that affect them, they often talk about whether the child is 'Gillick competent'
or whether they meet the 'Fraser guidelines'.

Fraser guideline

• The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the
Gillick case in the House of Lords, which apply specifically to contraceptive advice.
• Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her
parents or carers that she is seeking contraceptive advice or allow the doctor to inform the
parents or carers on her behalf.
• If she cannot be persuaded to do so they can proceed to give contraceptive advice and
treatment as long as certain conditions are met.

Article 8

• Article 8(1) of the ECHR, Silber J held that ‘any right to family life on the part of a parent
dwindles as their child gets older and is able to understand the consequences of different
choices and then to make decisions relating to them’.
Article 9

• Everyone has the right to freedom of thought, conscience and religion.

• This right includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in worship,
teaching practice and observance.
• R (Williamson and others) v Secretary of state - A group of parents and teachers tried
unsuccessfully to use Article 9 to overturn the ban on corporal punishment of children in
schools.
• They believed that part of the duty of education in the Christian context was for teachers to
assume the parental role and administer physical punishment to misbehaving children.
• The House of Lords rejected the case because the parents’ rights under Article 9 were
restricted by the need to protect children from the harmful effects that corporal punishment
might cause – a punishment that involves deliberately inflicting physical violence.
• The House of Lords concluded that the vulnerability of children made the legislation
necessary and that the statutory ban on corporal punishment in schools pursued a legitimate
aim and was proportionate.

Re W(A minor)(Warship: medical treatment)

The English Court Of Appeal, exercised its unlimited inherent jurisdiction over minors and ordered
that a 16-year old suffering from anorexia nervosa be transferred against her will from an
adoslescent residential unit to a hospital for eating disorder.

• Although the girl had sufficient intelligence and understanding to make informed decisions,
the special hospital was in the girl's best interest.
• The court emphasized that, because a unique characteristic of anorexia nervosa is that the
patient desires not to be cured, adhering to the minor's wishes in this case could lead to her
death or severe permanent injury.

• The court outlined how treating anorexic patients requires taking into account both their mental
state and their physical appearance. The court further determined that the question of whether a 16-
year-old juvenile has the absolute right to refuse medical treatment is not covered by the 1969
Family Law Reform Act.

Children Act 2004

• A recent development since the Children’s Act 1989, in the UK is that England and Wales.
• The power and duties of the English Commissioner is laid down in Part 1 of the Children Act
2004.
• S.72A Care Standards Act 2000 - duty to safeguard and promote the rights and welfare of
children

UN Convention on the Rights of the Child 1989

• European Convention for the Protection of Human Rights (ECHR) – no court exists under
UNCRC to enforce it.
• Article 3(1) – in action concerning children, whether undertaken by public or private social
welfare institutions courts of law, administrative authorities or legislatives bodies, the best
interest of the child shall be primary consideration.
 Strength of welfare principle

• Wide discretion of judge allows flexible approach

• Individuals’ facts can be taken into account
• Recognises value and importance of protecting children.
• Encourages parents to put children’s interest before own.

Criticism of the welfare principle

• Uncertainty – Hard to predict how well someone will look after the child.
• Judges have wide discretion, hard to anticipate outcome of the case and enables prejudice
to affect decision.
• Principle gives rise to inconsistency and unpredictability due to each individual case.
• Unfairness – rights-based approach would allow all family interests to be taken into account
• Increased costs – court hearings takes longer along with the proper procedures.

Weakness – quotation

• Michael Freeman has sought moral justification of children’s right – should respect a child’s
autonomy treating the child as a person and as a right holder – context of their abilities •
• Katherine Federle – concerned that the justification for the children’s right should not be tied
to children’s capacities or incapacities.

Conclusion

As a conclusion, the reform had been proposed to fill in the issue and challenges faced in welfare
checklist as it is an important criteria under the child’s act. Overcoming the criteria is important to
overcome the problems faced by children and the recommendations and necessary reforms place an
important criteria under the law.