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3.63Section 1(1) of the Children Act 1989 provides:

“When a court determines any question with respect to -

(a)the upbringing of a child;349 or

(b)the administration of the child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

First and paramount consideration

3.64The former law required the court to regard the welfare of the child as the “first and paramount consideration”.350  The word “first” had caused confusion because it had led some courts to balance other considerations against the child’s welfare rather than to consider what light they shed upon it.  Although the word “first” was effectively made redundant,351 a modern formulation was seen as necessary to clarify the law.  The 1989 Act, accordingly, omits the word “first” and the child’s welfare is now the only consideration in cases where section 1 applies.

3.65The English Law Commission recommended a modification to the paramountcy principle so that the interests of the child whose future happens to be in issue in the proceedings before the court should not in principle prevail over those of other children likely to be affected by the decision.  Their welfare should also be taken into consideration.352  However, this was not implemented in the Act.  This is perhaps because the requirement to consider the welfare of any child could divert the court’s attention from its duty towards the welfare of the child before it.

Criticisms of “welfare” principle

3.66Cretney and Masson explained that the welfare principle is not without problems:

“The lack of a consensus view on what children’s welfare demands or of adequate scientific information about what ensures healthy psychological development enables those who take the decisions [judges] to impose their own subjective views.    In addition the lack of a comprehensible and predictable standard makes it more difficult for couples to reach settlements by negotiation.  This may increase the number of disputed cases and the intensity of disputes.”353

3.67Nevertheless, they agreed that:

“the welfare principle is widely supported because it represents an important social and moral value, that children who are necessarily vulnerable and dependent must be protected from harm....  Any change

349 Upbringing is defined by section 105(1) to include “the care of the child but not his maintenance”.

350 Guardianship of Minors Act 1971, section 1.

351 J v C [1970] AC 668; Re C (a minor) (1979) 2 FLR 177, 184; Re KD (A minor) (Ward: Termination of Access) [1988] AC 806.

352 Law Com No 172, paragraphs 3.13-4.

353 Cretney and Masson, op cit at 525-6.

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