Children law: what is welfare?

When we’re working on issues about children, you might often hear us family lawyers talk about “welfare”. This is because the main law that guides us on children matters, the Children Act 1989, says in its very first section that “when a court determines any question with respect to…the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.” There are certain principles that can help the court in assessing the child’s welfare, if it is asked to do so: more details about this can be found in our downloadable fact sheet on children matters here. But “welfare” is not a term that people who aren’t family lawyers generally bandy about in conversation. So what does it actually mean?

In cases where there is a debate or a dispute about what to do for, about, or with a child, the court has to assess what course of action will be in that child’s best interests. In a public law context, this could mean whether it is right that the children should be taken into care. In a private law context, which is where we at CFLP are experts, 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 abroad, for instance.

In doing our work as family lawyers, we take inspiration and guidance from what senior judges say when they decide cases in court. However, there is actually remarkably little guidance on the concept of welfare because just as every child is unique, every dispute about children turns on its own unique set of facts, making general principles difficult to express. However, in the recent Court of Appeal case of Re G, Lord Justice Munby has made some interesting comments about what “welfare” means in this day and age and what the court’s approach should be in deciding private law children cases. He asked, “What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a ‘judicial reasonable parent’ and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children?”

Like most cases that make it all the way up to the Court of Appeal, Re G was a case where the facts are unusual. There are five children. The parents are both from an ultra-Orthodox Jewish community, and after their separation they could not agree either where the children should live, or what school they should go to. A High Court judge ordered that they should live with their mother, and the father was not permitted to appeal this ruling. He was, however, given permission to appeal the court’s ruling that the children should attend a modern Orthodox school as opposed to the traditional Orthodox school to which he sought to send them.

The Court of Appeal considered whether the High Court judge had been wrong to determine that the children should go to the school the mother had chosen, but decided that in fact the judge had been correct and dismissed the father’s appeal. In the course of telling the parents why the court made the decision it did, Lord Justice Munby had some general observations to make about the concept of welfare in children cases.

He said that the concept “extends to and embraces everything that relates to the child’s development as a human being and to the child’s present and future life as a human being”, and that “evaluating a child’s best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. 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, educational 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. The judge must adopt a holistic approach.”

The father argued that the community from which the children come is protective of them and desires to prevent corruption by outside influences, which would be present among the children at the school of the mother’s choice. However, Munby LJ said that “A child’s welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and 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.”

Fundamentally, the court’s principles in assessing welfare of children, Lord Justice Munby said in answer to his initial question, are these:

“First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child’s own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child’s opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in future.”

So that’s what welfare is, according to the Court of Appeal: maximising opportunities for every child, and enabling each child eventually to choose the way he or she lives their future life. An interesting concept in theory, but how easy will that be for parents and lawyers to apply to all of our unique children and disputes, we wonder? What do you think?