Roger Birch: What does “Welfare” mean for children in the context of Family Law?

It is interesting to look back at the 19th Century and in the case of In Re Agar-Ellis and Agar-Ellis Lascelles,[1]  Sir William Brett the then Master of the Rolls quoted and adopted the expression of Vice-Chancellor Bacon in the case of Re Plomley[2] who stated:

“Appeals have been made to the principles of the law which have been settled for Centuries. Those Principles have never been called into question.  One of those Principles (and it is the prominent one) is that this Court, whatever be its authority or jurisdiction, has no right to interfere with the sacred right of a father over his children” 

But in the case of In re McGrath[3] 10 years later and still in the 19th Century, Lindley LJ said:

“The dominant matter for the consideration of the Court is the welfare of the child.  But the welfare of the child is not to be measured by money only, 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.”

The judgment of Lindley LJ reflects the situation that prevails today in the 21st Century.  The child’s welfare is paramount.

In the case of Re G (Children)[4] Lord Justice Munby (now President of the Family Division) commented on the judgment of Lindley LJ and said:

“Those words are as true today as a century ago.  Evaluating a child’s best interests involves welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare conditions.  Everything that conduces to a child’s welfare and happiness or relates to the child’s development and present and future life as a human being, including the child’s familial, education and social environment, and the child’s social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account”      

So, we have a broad definition of the judicial approach to the meaning of welfare but how is that to be assessed?  The answer to that question can be found in the judgment of Lord Upjohn in the case of J v C[5]

“the law and practice in relation to infants … have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children; for after all that is the model which the judge must emulate for … he must act as the judicial reasonable parent.” 

Therefore, a child’s welfare is to be judged today by the standards of reasonable men and women in 2017, not by the standards of their parents say in 1968, and as Munby LJ[6] stated that “having regard to the ever changing nature of our world; changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes” 

Furthermore, Munby LJ stated “we live, or strive to live, in a tolerant society alive to the need to guard against tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority.”  

We therefore must consider the child’s best interests which are assessed by reference to general community standards, within the limit of what is permissible and thereby to entertain very divergent views about religious, moral, social and secular objectives they wish to pursue for themselves and for their children.  

Furthermore, the father's dominant position vis-a- vis the mother has also been removed and both parents come before the Court on an equal footing.

I will refer two cases which highlight the difficulties that can occur and which test the broad principles of tolerance and the welfare principle in the society of England and Wales in 2017.

The first case is Re G[7] which we have been discussing. The brief facts of this case are that both the mother and the father came from families which have for many generations been part of the Chassidic (Hasidic) community of ultra orthodox Jews.  They were married in 2000.  It was an arranged marriage.  According to the mother it was not a happy marriage.  Matters came to a head in October 2010 when the father, at the mother’s request, left the family home.  The marriage had irretrievably broken down.  It is fair to say that the mother considers herself to be an orthodox Jew but does not adhere to all the observances of Chassidic community. The father had appealed to the Court of Appeal against the decision of the County Court Judge who refused the father's application for shared residence and the judge approving the mother’s proposals for the children’s education.    

The mother’s style of observance is set out in a letter from the Principal of the school and describes school B as:

“a Modern Orthodox school.  No boy at the school has peyos (side locks). All the children come from homes where television is taken for granted.  The school is coeducational in its teaching.  Aside from lessons, boys and girls participate equally in most activities”. 

The father on the other hand stated:

“I would prohibit my children from going to the homes of the children who attend school B.  I would be willing to invite those children to my home provided they are not a negative influence, for example talking about TV programmes, movies or the internet”.

Stripped down to its bare essentials the dispute between the parents which the Judge had to resolve was whether, on balance, the mother’s arguments based on education should prevail over the father’s arguments based on way of life.  

It is to be noted that since October 2010 the children had not been following an exclusive Chassidic way of life.  When they were with their mother, they were inevitably exposed to her significantly less strict observance. So already, and in a significant part, what the father would have wanted for his children, was simply not possible.  Furthermore the observation by the Judge that a more accepting community composed of children from a variety of backgrounds, will make it easier for them to make the transition at the younger age, when children are often more adaptable in terms of peer groups.  It would also cause emotional confusion for the children for them to depend upon their mother for love and care, yet have her choices presented as undesirable, and maybe feel that they should not listen to her.  In conclusion the Judge considered that the children’s interests were best served by what the mother was proposing.    

The second case is J, B v The Children[8]  which was a case before Mr Justice Peter Jackson and the case concerned five children, their parents and their community. The children are A (boy aged 12), B and C (twin boy and girl, aged 8), D (a boy aged 5) and E (a girl aged 2).  Their parents’ marriage ended in June 2015, when their father left home to live as a transgender person.  She now lives as a woman and has had no contact with the children since she left. The children and the mother live in Chassidic community. 

The father’s application is for a sensitive reintroduction to the children, who should be helped to understand her new way of life and allowed to enjoy contact and significant contact with her outside community. 

The mother had opposed any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year.  She opposed direct contact because that would lead the children and herself being ostracised by the community.

Mr Justice Peter Jackson considered the case of Re G[9] and considered the case before him to be quite different. Both parents decided to bring their children up in the narrow ways of the community, and they continue to agree about this.  That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education.  It is not to be forgotten that the children have the right to preserve their identity (UNCRC Art 8), something that is a matter of particular pride to these children.    The Judge then refused direct contact and ordered indirect contact to take place 4 times a year.  A Family Assistance Order was made for 12 months to support the introduction of indirect contact.

The Judge stated that his judgment was not a failure to uphold transgender rights, still less a “win” for the community, but upholding of the rights of the children to have the least harmful outcome in a situation not of their making.

It is to be noted that A, aged 12, was already extremely anxious about contact and now feels protective towards his mother and younger siblings.  The Judge considered that embarking on contact would place the 12 year old under extreme pressure, which would inevitably have a detrimental effect on his development.

The thread running throughout both cases is the effect upon the children and what action should be taken in their best interest.  Their interests being paramount.   The welfare principle has been considered in the widest sense taking into account the child’s familial and the community in which they live.  The children’s development has been considered in both cases regarding their present and the future aspects of their life.  

The best interests of a child may not be that easy to ascertain.  On certain occasions, it may not be that straightforward just because you have a teenage child expressing views which after detailed analysis may not be in the best interests of that child.  Therefore, it does not necessarily follow that the child’s wishes should prevail.

In the case of Re A (a child)[10] there was litigation for 12 years with no fewer than 82 court orders.  The case concerned “an unimpeachable father” who had been consistently prevented from enjoying contact with his daughter by “an implacably hostile mother”.   During a detailed judgment, McFarlane LJ made the following comments:

“The evaluation of the weight to be given to the expressed wishes and feelings of a teenage child in situations where the parent with care is intractably hostile to contact is obviously not a straightforward matter, no matter how consistently or firmly those wishes are expressed”.[11]

“The prime example is that the judge records that the reasons for M’s [the child] express view were fear of her father and an inability to trust him…”  The judge also records that M loves her father and had thoroughly enjoyed relatively recent times with him.  Despite the … apparent contradiction between the reasons given by M for her stated view and the facts as the judge found them, at no stage does he engage in considering what weight he should give to her wishes and feelings …”.[12]

“The judge’s focus is very much upon the here and now.  It is plainly right for judges to make their evaluation of a child’s welfare based upon the current situation, but in analysing that situation they must bring to bear such evidence that may be relevant from what has transpired in the past”.[13] 

The trial judge ordered that there should be no direct contact between the father and his daughter; the father shall be at liberty to send e-mails, cards and presents at Christmas and on his daughter’s birthday and her shall be at liberty to obtain reports and information for his daughter’s school.  No further applications to be made (Children Act 1989 - Section 91 (14)) until the child was 16 years.  The father appealed to the Court of Appeal and the mother submitted that the “judge was right in holding that the time had come to listen to the voice of the child and bring these proceedings to an end”.  The Court of Appeal allowed the father’s appeal and ordered a re-hearing of the case.

I mention the case of Re A as a gentle reminder that you cannot pay lip service to the expression “Voice of the Child”.  It requires continual vigilance to tease out the reality of the situation.  An expert’s report is not necessarily correct.  There is a need to examine all the facts and if needs be to challenge the views that are expressed.   

Having discussed in general terms the paramountcy of the child’s welfare I want to move onto set out a broad review of the law which underpins the Welfare of the Child.

In England and Wales the there are two kinds of proceedings involving the welfare of children

In the Private Law context, it could mean what arrangements should be made for where the children live or spend their time, and it also plays a part where the Court is asked to decide specific issues relating to the upbringing of the child: schooling, medical treatment or journeys out of the jurisdiction of England and Wales.   In the Public Law context, this could mean whether it is right that the children should either remain with their parents or be taken into care of the State.   The State being the Local Authority where the child resides.

The law relating to children in both Private and Public Law situations is mainly found in the Children Act 1989 (CA 1989), as amended by the Adoption and Children Act 2002 (ACA 20020 and the Children and Adoption Act 2006 (CAA 2006).  There have also been further substantial changes and amendments by the Children and Families Act 2014 (CFA 2014).

Section 1 of the CA 1989 is the starting point concerning the welfare principle and the CA 1989 provides a check list for the Court.  It is not intended to be exhaustive and is more of an aide-memoire for Judges to ensure that all the basic elements of a child’s welfare are considered.  It is also to be noted that no single factor on the checklist is deemed more important than any other.  The check list is:

• To ascertain the wishes of the child (considering age and understanding);
• His physical, emotional and educational needs;
• The likely effect on him of any change of circumstances;
• His age, sex, background and any characteristics of which the court considers relevant;
• Any harm which he has suffered or is at risk of suffering;
• How capable each of his parents and any other person is in relation to whom the court considers the question to be relevant, is of meeting his needs;
• The range of powers available to the court under this Act in the proceedings in question.

Further, the CFA 2014 amends Section 1 of the CA 1989 by adding Sections 2A and 2B.  Section 2A introduces a presumption that, unless the contrary is shown, the involvement of each parent in the life of the child, will further the child’s welfare.  Section 2B seeks to ensure that Section 2A does not create a presumption of shared care as the starting point for children.  It provides that “involvement” includes direct and indirect involvement and “shall not be taken to mean any particular division of a child’s time”.     

The CFA 2014 altered the terminology that was used in applying for “custody/residence” and “access” orders in respect of children. 

Section 8 of the CA 1989 now provides for a Child Arrangements Order.  Section 8 of the CA 1989 states:

“This is an order which regulates arrangements relating to:

• With whom a child is to live, spend time or otherwise have contact; and
• When a child is to live, spend time or otherwise have contact with any other person

A new significant change is the requirement for some form of mediation before an application is issued.  The CFA 2014 seeks to place even greater emphasis on parents reaching agreement themselves.  The Child Arrangements Programme 2014 has been introduced and the aim of the programme is to facilitate and encourage the resolution of disputes outside the Court system and, where this is not possible, a swift resolution of the dispute through the court system.

Section 10 of the CA 1989 requires that an applicant, before filing an application under Section 8 CA 1989 for a Child Arrangements Order, is required to attend a Mediation Information and Assessment Meeting (MIAM).  This provision also includes applications for a Prohibited Steps Order and a Specific Issue Order. The MIAM has a dual purpose: first, to provide information on out-of-court dispute resolution mainly, mediation and collaborative law.  Secondly, to assess its suitability. Each party must be seen individually, because there may be issues involving domestic abuse, child protection or other concerns and a careful assessment of suitability cannot be made with both parties together.  The requirement to attend a MIAM applies to the applicant only, and not to the respondent.  Consequently, many respondents ignore or refuse to attend a MIAM, possible misunderstanding its purpose.

It should be noted that domestic violence, child protection concerns or urgency (risk to the life, liberty or physical safety of the applicant) are exceptions to the MIAM procedure.  When an application is made, for example, under Section 8 of the CA 1989 a Form C100 is filed, signed by the family mediator setting out the results of the MIAM and/or the reasons for its failure/suitability. 

The Code of Practice for Family Mediators.[14]   At paragraph 5.7 there is reference to the Welfare of Children.  Paragraph 5.7.1 states:

“At all time the mediator must have particular regard to the welfare of any children of the family, and should encourage the participants to focus on the needs and interests of the children as well as their own”.

Further, Paragraph 5.7.2 states:

“The mediator must encourage the Participants to consider the children’s wishes and feelings.  All children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during the Mediation, if they so wish.”

It can therefore be seen that the “VOICE OF THE CHILD” has been introduced into the Mediation process.  Furthermore, where it stipulates that “particular regard to the welfare of any children” it means that the welfare interests are “paramount” otherwise you would have a two tier system.  

Public Law involves the Local Authority having an “overarching responsibility for safeguarding and promoting the welfare of all children and young people in their area”[15].   The Guidance defines safeguarding and promoting the welfare of children as:

• Protecting children from maltreatment;
• Preventing impairment of children’s health or development;
• Ensuring that children grow up in circumstances consistent with the provision of safe and effective care; and
• Taking action to enable all children to have the best outcomes.

Local agencies, including the police and health services, also have a duty under section 11 of the Children Act 2004 to ensure that they consider the need to safeguard and promote the welfare of children when carrying out their functions.

In Appendix A to the Guidance it sets out a series of definitions concerning:

• Child protection
• Abuse
• Physical abuse
• Emotional abuse
• Sexual abuse
• Child sexual exploitation
• Neglect

It is interesting to note in Appendix A it defines Children as:

“Anyone who has not yet reached their 18th Birthday.  The fact that a child has reached 16 years of age, is living independently or is in further education, is a member of the armed forces, is in hospital or in custody in the secure estate, does not change his/her status or entitlements to services or protection.”

Putting it in simple terms Public Law involves the state intervention into the lives of families. It is accepted that parents are best placed to make decisions about and care for their children, so state intervention should only happen when a child is at risk.  The test before the court has power to act is known as the “threshold criteria”.

Apart from adoption, a care order represents the most fundamental intervention in family life and will only be made where the court is satisfied that no other measure will protect the child or children in question.  Furthermore, where the care plan is for adoption, it is the decision of last resort and should only be made where there is no other option available.[16]  

Clearly, permanent placement, the removal of a child and/or children from their parents and family interferes with Article 8[17] rights of the child and those of the family associated with the child.  There must be a balance of the competing rights when making a final decision.  In Re C and B[18]  Hale LJ as she then was stated:

“Intervention in family life must be proportionate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child and their family is only justified by the overriding necessity of the interests of the child”. 

The threshold criteria for a care order are set out in CA 1989 at Section 31 (2) which states:

(2) A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or

(ii) the child’s being beyond parental control. 

Clearly, there are two elements to the threshold test.   The first is establishing the existence, or likelihood, of significant harm to the child.  The second is establishing that that harm is caused by one of the two circumstances in (b).  Both elements must be shown.

That gives an overview of Private and Public Law in England and Wales.

Finally, I would like to mention the Children and Social Work Bill (the Bill) which is currently being considered by Parliament.  This Bill when it becomes law will have a further impact upon the welfare of the child.  I will mention three new areas that are contained in the Bill, they are:

Children in Care and Care Leavers in England

Corporate parenting principles.  This clause introduces a set of principles to which local authorities in England must have regard in carrying out their functions in relation to looked after children and care leavers.

Personal Advisor:  a clause to extend existing duties on local authorities to

provide a personal advisor to care leavers in education up to the age of 25, so that every care leaver in that age group has similar support should they want it.

Adoption and Care in England

Proceedings relating to Children: Clauses requiring courts to take into account the current and future needs of a child when considering the plan for their upbringing should they enter care; and to require courts and agencies to consider any relationships between a child and their prospective adopters, with whom they have been placed, when an adoption decision is made.

Educational achievement of children adopted from care or who have left care under a special guardianship order of child arrangements order – places a new duty on local authorities to promote educational achievement and to appoint an officer (Virtual School Head) to ensure the duty is properly discharged; and a new duty on school governing bodies to designate a member of staff with responsibility for promoting the educational achievement of children adopted from care.  

Serious Child Protection Cases

Serious case Reviews: Clauses to create a new framework for reviewing certain incidents of national importance at the national level and for making the outcomes of those reviews public

The UN Committee on the Rights of the Child raised concerns about the attainment and life chances of children in care.  The Children’s Rights Alliance England raised concerns that the transition to adulthood for care leavers feels accelerated and compressed to their peers[19].

Children and young people who also gave evidence to the UN Committee felt that not enough is done to support children leaving care, with many feeling unprepared and pushed to leave care before they were ready.

This new legislation is providing further measures to assist children in care and care leavers.

Roger Birch has a multi-disciplinary practice which combines chancery and commercial, family law and clinical negligence.