1. A Critical Perspective on the Welfare Principle – Stephen Gilmore (2001)

From: The Law and Social Work; Part I – Key Themes and Issues; pp 3-10; Palgrave Macmillan – 29 Jan 2001

Stephen Gilmore

Introduction

In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502, the Court of Appeal held that it would not be in a child’s best interests to have a lifesaving liver transplant, despite unanimous medical opinion advocating such treatment. A successful outcome also depended on the child’s mother’s cooperation, and it was held that it was not in the child’s interests to direct his mother to commit herself to a procedure that she opposed. This case is illustrative of the difficult decisions facing the courts in children’s cases. Such cases are decided according to the ‘welfare principle’ in s.1(1) of the Children Act 1989,[1] which is the subject of this chapter. In what follows, I set this provision in its wider social and legal context, examining its historical background and criticisms of the concept. I also advance tentative suggestions for the law’s role in decision-making concerning children.

The emergence of the welfare principle

Decisions relating to children have not always been taken on the basis of their welfare. In the early nineteenth century, the law upheld the right of the father to make decisions for his child: ‘the father knows far better as a rule what is good for his children than a court of justice can’ (Bowen, L.J. in Re Agar-Ellis (1883) 24 Ch. D 317, at 338). The father, as the natural guardian of his legitimate child, could enforce his right of custody in the common law courts by issuing a writ of habeas corpus, and he would be successful unless the child were in danger of being exposed to ‘cruelty or contamination by some exhibition of gross profligacy or corruption’ (R v. Greenhill (1836) 4 Ad and E 624, at 640, per Lord Denman CJ ). [2]

A number of societal changes prepared the way for the emergence of the welfare principle – a rise in individualism, affective relationships, companionate marriage (Stone, 1977) and the emergence of a concept of childhood (Aries, 1962). A number of interconnected factors were also influential: a growth in philanthropic and State concern for children (Platt, 1969; Packman, 1975; Maidment, 1984; Parton, 1985, 1991), an increased emphasis on maternal care (Brophy, 1982) and a movement towards more subtle and pervasive forms of State intrusion into the family in the form of ‘psy-experts’ (Donzelot, 1979). The Court of Chancery introduced the interests of the child as a justification for interfering with the father’s rights. (See, for example, De Manneville v. De Manneville (1804) 10 Ves 54 and Wellesley v. Duke of Beaufort (1827) 2 Russ. Rep 1. For a general review of the emergence of the welfare principle see Hall, 1972; Bainham, 1998.) By the early 1890s, the welfare of the child had become the ‘dominant matter’ (see R v. Gyngall [1893] 2 QB 232 and Re McGrath [1893] 1 Ch 143).[3]

The Guardianship of Infants Act 1886 provided that the child’s welfare was to be a consideration for the court in custody disputes. The Guardianship of Infants Act 1925 provided that the child’s welfare was to be the ‘first and paramount’ consideration. These developments owed ‘more to the fight of women for joint guardianship over their children during marriage than to a child protection philosophy’ (Maidment, 1984).

The House of Lords in J v. C [1970] AC 668, held that the welfare principle was not confined to disputes between parents, but applied equally between parents and third parties. The court held that it was in a Spanish boy’s best interests to remain in England with his long-term English foster parents. The words ‘first and paramount’ were interpreted to mean:

more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question… they connote 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 interest of the child’s welfare as that term has now to be understood. That is… the paramount consideration because it rules on or determines the course to be followed. (per Lord MacDermott, at 710–11)

There is recognition here that perceptions of welfare may change over time. An illustration is afforded by Re M (Child’s Upbringing) [1996] 2 FLR 441, CA, in which, based on facts very similar to those of J v. C (above), a Zulu boy was returned to his parents in South Africa. The difference may arguably be an increased awareness, in the intervening quarter century, of the importance of a child’s cultural heritage. However, an international recognition of children’s rights (see below) has brought into sharper focus potential conflicts between children’s welfare and certain cultural practices (An-Na’im, 1994; Freeman, 1995).

The welfare principle was strengthened in the Children Act 1989 by the removal of the word ‘first’. The principle developed in case law and emerged in statute as a byproduct of a struggle to equalise the position of mothers and fathers in relation to the guardianship of their children. Its scope and meaning were enlarged by judicial interpretation. As Alston comments:

despite its very limited jurisprudential origins, the principle has come to be known in one form or another to many national legal systems and has important analogues in diverse cultural, religious and other traditions. (Alston, 1994)

Indeed, it has gained an international consensus, most notably, but not exclusively, in art. 3(1) of the United Nations Convention on the Rights of the Child (UNCRC) 1989 which provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (UN General Assembly res 45/118, 1989).

(See generally McGoldrick, 1991; Olsen, 1992; Alston, 1994.)

A comparison of art. 3(1) with the welfare principle reveals that the latter is stronger in its adoption of children’s welfare as ‘the paramount’ as opposed to ‘a primary’ consideration,4 although its scope is narrower, being confined to decisions in relation to a child before a court rather than all actions concerning children (Parker, 1994). Indeed, s.1(1) will only apply where the welfare of a child who is the subject of an application5 is directly in issue.

Even in this strongest of forms, the principle commands a broad consensus of support, and it is rare to encounter explicit justifications (Reece, 1996). Thus the pervasive nature of welfare and the consequent difficulty of getting beyond this paradigm must be recognised.6

Why welfare?

Herring comments:

The strength of the welfare principle is that it focuses the court’s attention on the person whose voice may be the quietest both literally and metaphorically and who has the least control over whether the issue arrives before the court or in the way it does. The child may also be the person with whom the court is least able to empathise. (Herring, 1999)

Yet a child’s wishes and feelings can be important contributions to ascertaining where the child’s welfare lies. There is, however, undoubtedly a complex interplay between children’s rights and their welfare (Eekelaar, 1994). There are considerable difficulties in recognising children’s rights (Smith, 1997a) or giving a voice to children (O’Donovan, 1993; Piper, 1999; Roche, 1999). The danger of the welfare principle is that it may impede a consideration of issues from the child’s perspective. Welfare can all too readily be something that is done to children.

The welfare principle has important rhetorical and symbolic functions, although Altman (1997) suggests that ‘overstating the importance of a child’s welfare prevents parents, judges and legislators from systematically undervaluing it’. Nevertheless, it:

represents an important social and moral value that children, being vulnerable, impressionable and dependent, must be protected from harm and given every opportunity to become successful adults, while at one and the same time it may be used to justify almost anything. (King, 1987)

The nature of welfare decision-making: predictive, value laden and indeterminate

One criticism of the welfare principle is that it affords too wide a discretion to the judge. Whereas most legal decision-making claims to reconstruct past events and apply the law to those events, decision-making in children’s cases is ‘person oriented not act oriented’, involving an evaluation of persons as social beings (Mnookin, 1975). Decisions are consequently predictive rather than simply concerned with the determination of past events (although prediction may of course involve a consideration of past events). A feature of person-orientated, predictive decision-making is its indeterminacy. Taking a relatively uncomplicated example of a custody dispute between parents, Mnookin points out that, to reach a rational decision, one would need to:

1. Specify possible outcomes, which requires considerable information.
2. Ascertain the probability of those alternative outcomes. Here one encounters the difficulty that there are ‘numerous competing theories of human behaviour’ (Mnookin, 1975). Even if a consensus were possible or desirable, one seems unlikely to be achieved when theorists posit plurality of knowledge and ways of seeing and question claims to know, especially when the claim is about others.
3. Assign values to inform choice. How, for example, is one to choose between a warm interpersonal environment and one which favours self-sacrifice and discipline? Is one to take a long- or a short-term view?

Parker (1994) has pointed out that value judgments are evident at all three of the above stages, and it is not surprising therefore that welfare decisions have been criticised as being subjective or arbitrary. These criticisms must, however, be evaluated in the light of an assessment of the comparative efficiency of discretion as against rule-based adjudication (Schneider, 1992).

The advantage of discretion is its flexibility, but it may make the prediction of decisions difficult and thus encourage litigation. The investigation of children’s individual circumstances may cause delay and be costly.

Parties may not be given any guidance in advance on how they should conduct themselves, or the opportunity to address issues that were seen as important in the judge’s mind when coming to his or her decision (Mnookin, 1975; Elster, 1987). Some writers have argued that, in custody disputes, a primary caretaker rule (or presumption) would cut down decision costs and, looking backwards, would better serve the justice of such cases (Fineman, 1989). A random mechanism, such as flipping a coin, has also been canvassed (Mnookin, 1975; Elster, 1987). The dangers are that this denies the importance of human difference, as well as denying parties a process/forum in which their anger and aspirations can be expressed (Mnookin, 1975; see also Day Sclater and Yates, 1999, for evidence of the importance of these processes). Furthermore, as King points out:

the paradox that must be confronted is that the more clearly the law defines what factors should be considered and what objectives should be achieved… the more there will be to argue about and the less effective the welfare principle will be as a non-denominational, class-free, apolitical, race- and gender-neutral principle to which everyone may pay lip-service. (King, 1987)

It can be argued that the Children Act 1989 retains a wide discretion while providing a structure to the exercise of discretion by introducing a checklist of factors in s.1(3).

Overcoming indeterminacy – appealing to a consensus

One way of addressing the problem of indeterminacy is to draw on a consensus, particularly on what does not promote children’s welfare (Mnookin, 1975). Achild’s welfare may, for example, be assessed according to how closely his or her upbringing accords with ‘the norm’.7 Reece (1996a) argues that such approaches impede the debate about appropriate lifestyles and may stigmatise children living in ‘unusual’ families.

It may be necessary, therefore, to question the alleged neutrality of the welfare principle. First, the manner in which children’s welfare is promoted is contingent on a vast array of historical and political decisions relating to how we are governed, for example our individualist approach to child-rearing as opposed to a collectivist one, and Parliament’s preference for ‘significant harm’ rather than a simple welfare criterion as a precondition to State intervention to protect children . These choices form the backdrop against which specific welfare decisions are taken. How the welfare of a particular child is viewed may differ considerably depending on whether the decision is taken in a society which considers that family privacy and autonomy should be prized highly and thus sees a minimal role for the State (see, for example, Goldstein et al., 1979; cf. Freeman, 1983a) or one that sees a more enlarged and very public role for the State in child-rearing (Parker, 1994).

It would be a mistake, however, to see the State’s influence as being confined to its explicit political-juridical decisions. The family is not politically neutral (Olsen, 1985); the State equally governs the structures and roles within the family, some of which may be characterised by marked, and ideologically self-reproducing, inequality (Archard, 1993).

We must be careful to note the connection between the underlying structures within our society and our understanding of consensus. We must therefore be vigilant to ask ourselves, ‘Whose shared understandings? Whose consensus?’ (Okin, 1989).

Looking to child welfare science

Law has looked to ‘child welfare science’ for guidance on what is likely to promote children’s welfare, and this of course has been subject to change over time (for a summary, see Maclean and Eekelaar, 1997). Deferring to child welfare science is, however, not universally admired. Fineman and Opie (1987) argue that social science conclusions are ‘thoroughly embedded in the culture and professional practices which produce them’ and Fineman comments that:

What has been lost under the current practice of deferral to the helping professions are legal procedural values such as due process and public decision-making, in addition to the undervaluing of nurturing and caring. (Fineman, 1989)

Is the welfare principle unjust?

A further strand of criticism is that the welfare principle is unjust in its focus solely on the child (Elster, 1987; Reece, 1996). It is arguable that, if we were constructing a principle for the first time, our starting point would be equality (Parker, 1994), and we would then adopt some principles of distributive justice. Elster (1987) suggests that while we would recognise the child’s need for special protection, justice would require that small gains in the child’s welfare were not achieved at the expense of large losses in parental welfare. There is at the least a case for justice considerations where welfare considerations are evenly balanced (Hall, 1977; Murphy, 1991).

Reece (1996) seeks an explicit justification for the exclusion of adults’ interests, concluding that the welfare principle should be abandoned. She identifies and questions a number of assertions commonly advanced to justify it. First, children have a right to have their welfare prioritised. This is sometimes justified by drawing attention to the fact that adults have created children and that self-sacrifice is in the nature of parenting. Reece argues that these justifications are not self-evident, and the argument fails ‘because it assumes what is to be justified, namely a special position for children’ (Reece, 1996).

Second, it is suggested that children are more vulnerable. Reece identifies the fallacy that protection for children necessarily involves a prioritisation of their welfare over all other considerations.

Third, children must be given the opportunity to become successful adults. Reece views this argument as self-defeating because, broadly speaking, it promotes the future at the expense of the present, and more narrowly, ‘if decisions are made which sacrifice adults’ interests to children’s interests there is little point in becoming a successful adult’. The argument here is put rather too highly. First, even a decision-making criterion that took account of adults’ interests might conclude in particular circumstances that those interests were outweighed by a child’s interests.

Second, there are many differences in the respective lives of children and adults to justify the opposite conclusion that there is a point in becoming a successful adult even if some aspects of that life are subordinated to children’s interests.

Rather than abandon the principle, Herring (1999a, 1999b) prefers to reconceptualise it in a way that recognises the child’s need to learn mutual respect and social obligation. This would be only to the extent of not demanding excessive sacrifice in return for minor benefits. It seems, however, that this simply alters the paradigm in which conflict will continue, that is, what constitutes an appropriate ‘benefit’ or ‘sacrifice’ or what is excessive. I remain unconvinced by a formulation of the welfare principle that fails to take any account of adults’ interests and treats adults simply as a means to the promotion of children’s welfare.

The recurrent theme in this analysis of the welfare principle is that, in children’s cases, law may be abdicating its own distinctive role in ensuring due process, challenging evidence and ensuring justice for the participants in disputes. Indeed, it may suggest that what is required in general is a clearer picture, and mutual appreciation (Murch, 1995), of the respective roles of professionals involved in children’s cases.

Notes

1. S.1(1) provides: ‘When a court determines any question with respect to – (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.’
2. Thus in R v. De Manneville (1804) 5 East 221, an 8-month-old baby was retained by the father who had snatched it from the mother’s breast, yet in the case of Shelley v. Westbrooke (1817) Jac. 266, the poet Shelley lost custody of his children because he was an atheist.
3. In this case, for the first time, the court attempted to explain what was meant by welfare. It was ‘not to be measured by money alone, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being, nor can the ties of affection be disregarded’ (per Lindley LJ). Maidment (1984) notes that given that scientific interest in children was still in its infancy and practices that did not promote the ties of affection were common, ‘where [the judiciary’s] beliefs came from and why they were suddenly expressed in 1893 is unanswerable, except that a more sensitive approach to children and their needs was generally evident at the time’ (Maidment, 1984).
4. There is a range of formulations in both domestic and international provisions, from treating children’s welfare as paramount (for example, s.1 CA 1989; art. 21 UNCRC), to first consideration (s.25(1) Matrimonial Causes Act 1973; s.6 Adoption Act 1976), to simply regarding children’s welfare as one consideration (art. 9, 18, 20 UNCRC) (see Parker, 1994 and Alston, 1994). Any discussion may, therefore, need to distinguish between criticisms that are generally applicable and those which are directed to particular formulations of welfare criterion.
5. See Birmingham City Council v. H (No. 3) [1994] 2 AC 212, and for a comment, see Douglas (1994) and Bainham (1995).
6. As Fineman (1988, p. 36) has pointed out in the context of child custody policy: ‘Asserting that a professional or political position conforms to, or is advanced in a manner designed to advance, the best interests of the child has become the rhetorical price of entry into the debate.’
7. See, for example, C v. C (A Minor) (Custody: Appeal) [1991] 1 FLR 223, CA, in which it was said that, all other things being equal, heterosexual parents rather than homosexual parents were to be preferred.