Paramountcy Principle Analysis

Introduction
Section 1(1) of the Children Act 1989 (CA) contains what is commonly referred to as the ‘paramountcy’ or ‘best interests principle’. The section 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.
The paramountcy principle has been a feature of English law for a very long time (Alston & Gilmour-Walsh 1996, p3) and from time to time, has been subjected to critical scrutiny (Reece 1996, p 267; Fineman 1988, p727). This essay investigates the extent to which the operation of parental responsibility and the application of the paramountcy principle conflict in private law disputes concerning children. Firstly, I briefly analyse the implications of the paramountcy principle and then I examine the cause of conflict between the application of the paramountcy principle and parental responsibility. In the penultimate section, I proffer an analysis for mitigating the conflict. I make my final observations in the conclusion.
Implications of the welfare principle
The welfare principle as set out in section 1(1) of the CA requires that the interests of the child are treated as paramount and so the interests of parents or other parties must be subordinated to those of the child. As Lord McDermott explained, the welfare principle, ‘connote[s] 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 interests of the child’s welfare’(Re KD (A Minor) (Wardship: Termination Of Access) [1970] AC 668 at pp710-711).

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Similarly, the Court of Appeal stated in Re P (Contact: Supervision) ([1996] 2 FLR 314 at p328) that the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child’. This view has been upheld in many other cases (Lowe 1997) like Re O (Contact: Imposition of Conditions) where it was held:
It [is]…worth stating…some very familiar but none the less fundamental principles…overriding all else…the welfare of the child is the paramount consideration … it cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child.
Thus, the law’s rendering of the paramountcy principle is individualistic. Hence, the welfare of the child is viewed without consideration for the welfare or interests of the rest of his or her family, friends and community.
Parental responsibility and the paramountcy principle
Re K D (Minor) (Ward: Termination of Access) ([1988] 2 WLR 398) ) provides a good example of how the individualistic conception of the welfare principle works in actual practice. In that case, Lord Oliver specifically considered the mother’s appeal that the right to access was a parental right protected by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and that to terminate access with her child would result in a breach of her article 8 rights. In deciding the matter, Lord Oliver held:
Parenthood [confers]…on parents the exclusive privilege of ordering…the upbringing of children of tender age … That is a privilege which … is circumscribed by many limitations … When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration … the welfare of the child.
The idea of parental responsibility is concomitant with parental rights. Consequently, it has been suggested that the paramountcy principle does not sit well with the idea of parental rights/responsibility because the former is structured along welfarist principles whilst the latter is rights-based. In particular, it has been suggested that the principle goes against article 8 of the European Convention on Human Rights (ECHR) which provides a qualified right to respect for private and family life, the home and correspondence. By encapsulating the rights of both parents and children to private and family life, article 8 appears on its face to come into clear conflict with the CA, which renders the child’s interests paramount. This criticism has become particularly compelling since the implementation of the Human Rights Act 1998 (HRA) which domesticated Convention rights in the UK (Herring 1999b).
However, it is possible (and indeed necessary) to expound an analytical framework which allows the recognition of both principles as being important for the survival and development of the child.
Reconciling parental responsibility with the paramountcy principle-a rights-based analysis
There is a strong consensus among family law practitioners that section 1(1) of the CA, as it is currently interpreted, reflects a predominantly utilitarian or welfarist approach. Stephen Parker in his seminal piece on family law and legal theory has analysed the movement of family law from a rights-based to a welfare-based approach (Parker 1992, p 311). In this regard, it is emphasised that before the HRA was enacted the rights-based model of family law had, been rejected due to the increasing dominance of the child-centred approach advocated by the paramountcy principle in section 1(1) of the CA.
However, the CA, since it identifies the welfare of the child as the sole and decisive consideration, does not correspond to classic utilitarianism: it does not seek to arrive at an outcome which, overall, achieves the best result for the family members or others, but only for the child. In other words, it only requires that the child’s welfare should be paramount, rather than by direct reference to the principle of utility whereby actions that maximise the greatest welfare of the greatest number are preferentially singled out (Herring 1999b pp223-35). The paramountcy principle is not strictly welfarist principle as has been argued by many.
At the same time it may be pointed out that the ECHR’s approach cannot be said to be fully rights-based. Although the Convention is clearly a classically or rights-based document since it assumes that certain rights and interests are intrinsically valuable and should prima facie be protected, its adherence to a strictly rights approach may be viewed as undermined in respect of the materially qualified articles such as articles 8-11. These articles proffer a qualified rights-based approach, since the qualifications of their second paragraphs allow the rights to be compromised by sufficiently weighty consideration (Mullender 2000, pp 493-516). Thus, although the Convention’s theoretical underpinnings differ significantly from those of the CA, the differences in their approaches and values may be less irreconcilable than some theorists have cared to acknowledge.
However, demonstrating that the approaches between the paramountcy principle and the ECHR are not all that much at odds does not resolve the issue. This is because as it is currently conceived and applied, the paramountcy principle is incompatible with the demands of article 8 of the Convention. There is, therefore, a need for a reinterpretation of the principle under section 3(1) of the HRA in accordance with the interpretative obligation under that section, and of the need for taking account of the relevant Strasbourg jurisprudence under section 2.
The term ‘paramount’ in section 1(1) of the CA needs to be redefined, but such redefinition need not be radical because the word ‘paramount’ also suggests the notion of ‘pre-eminency’, rather than the meaning the courts have so far given it under the CA, whereby it has in reality meant ‘sole’. However, given the scope for ambiguity that the courts might discover in the term ‘pre-eminent’, the term ‘primacy’ might be more in line with the ECHR’s provisions as well as the jurisprudence of the Strasbourg institutions. The adoption of that term could be viewed as a possible interpretation of the term ‘paramount’ and would obviate the need for a declaration of incompatibility under section 4 of the HRA.
This rendering of the paramountcy principle is also in line with article 3 of the Convention on the Rights of the Child which requires that in all actions concerning children, their best interests must be a primary consideration. The use of the article ‘a’ in the Convention suggests that the welfare or best interests of the child are to be considered, but that a number of other factors can also be considered (Alston 1994b). Clearly, these factors include the recognition of parental responsibility.
Concluding remarks
It is clear from the foregoing that despite its utilitarian foundations, the paramountcy principle can exist side by side with the rights-based approaches required by the application of parental responsibility. A persuasive case may indeed be made for the removal of the primacy principle. However, given the entrenchment of the principle in English law, it is not only desirable but possible to re-interpret the principle in a manner that comport well with the rights-based framework. The extent of dissonance between the two frameworks depends on the extent to which judges and practitioners are willing to accommodate a rights-based approach in dealing with matters that involve the two principles.
Bibliography
International Conventions
Convention on the Rights of the Child
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
Statutes
Children Act 1989
Human Rights Act 1998
Cases
Re KD (A Minor) (Wardship: Termination of Access) [1970] AC 668
Re P (Contact: Supervision) [1996] 2 FLR 314
Re O (Contact: Imposition of Conditions)
Books and articles
Alston, P (ed), The best interests of the child: Reconciling culture and human rights, Oxford: Oxford University Press, 1994a.
Alston, P ‘The best interests principle: Towards a reconciliation of culture and human rights’ in Alston, P (ed), The best interests of the child: Reconciling culture and human rights, Oxford: Oxford University Press, 1994b.
Alston, P & Gilmour-Walsh, B The best interests of the child: Towards a synthesis rights and cultural values, Florence: Innocenti Studies, 1996.
Choudhry, S & Fenwick, H ‘Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act’ 2005 Oxford Journal of Legal Studies 453.
Eekelaar, J ‘Beyond the welfare principle’ 2002 Child and Family Law Quarterly 237.
Fineman, M ‘Dominant discourse, professional language and legal change in child custody decision-making’ (1988) 101 Harvard LR 727.
Fortin, J ‘The HRA’s impact on litigation involving children and their families’ (1999) CFLQ 237.
Herring, J ‘The Human Rights Act and the welfare principle in family law – Conflicting or complementary?’ (1999a) CFLQ 223.
Herring, J ‘The welfare principle and parents’ rights’, in A. Bainham, et al (eds) What is a parent? A socio-legal analysis London: Hart Publishing, 1999b.
Mullender, R ‘Theorising the third way: Qualified consequentialism, the proportionality principle and the new social democracy’ (2000) 27(4) J. Law and Society 493.
Parker, S ‘Rights and utility in Anglo-Australian family law’ (1992) 55 MLR 311.
Van Bueren, G The international law on the rights of the child Dordrecht: Martinus Nijhoff Publishers, 1995.