Taking the rights of parents and children seriously: Confronting the welfare principle under the Human Rights Act

Oxford Journal of Legal Studies

Volumn 25, Issue 3, 2005, Pages 453-492

  Choudhry, Shazia ^c   Fenwick, Helen ^a,b  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

^b DURHAM UNIVERSITY   (United Kingdom)

^c NONE

Author keywords

[No Author keywords available]

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EID: 27844481084     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi023     Document Type: Review

References (274)

1. See M. Minow 'Interpreting Rights: An Essay for Robert Cover', 96 Yale Law Journal 1860 at 1890-91 (1987);
2. H. Reece 'The Paramountcy Principle: Consensus or Construct?' (1996) Current Legal Problems 267.
3. Some judges share that perception; in In the matter of D [2004] 1 FLR 1226 at para 8 Munby J. said: 'when the system fails - and fail it does - it is disproportionately fathers and not mothers who find themselves, as well as the children, the victims of that failure'.
4. See, e.g. the Guardian 21, 22 Oct 03 and 5, 6 Nov 03.
5. They include: Families Need Fathers (FNF, website, www.fnf.org.uk.), the Equal Parenting Council, until recently known as the Equal Parenting Party (EPP, website: www.equalparenting.org,); the UK Men's Movement (UKMM), website: ww.ukmm.org.uk., Dads Against Discrimination (DADS); fathers4justice, website: Fathers4justiceahoogroups.co.uk; the National Child Rescue Organisation, www.childrescue.org.uk. For criticism of the actions of some of these groups see the articles by M. Dearle and M. Stowe, The Times, Law at pages 6-7, 23.3.04.
6. A. Bainham, 'Can we protect children and protect their rights?' (2002) Fam Law 279 at 288. The comment was made in the context of children's Convention rights but it is equally applicable, it is argued, to conflicts between their rights and those of parents.
7. For recent criticism see: J. Eekelaar, 'Beyond the welfare principle' (2002) CFLQ 237
8. H. Reece, above n 1
9. A Bainham ibid.
10. A. Bainham, 'Contact as a Right and Obligation' in A. Bainham, B. Lindley, M. Richards and L. Trinder (eds), Children and their Families: Contact, Rights and Welfare (Hart, 2003) ch 5 esp. at 61, 63-67, 74-75 and 83-86.
11. J. Fortin, in Children's Rights and the Developing Law (Butterworths, 2nd edn, 2003), esp. ch 19 offers cautious support to a rights-based approach.
12. See, e.g. C. McGlynn 'Reclaiming a Feminist Vision: The Reconciliation of Paid Work and Family Life in European Union Law and Policy', 7 Columbia Journal of European Law 241-72 (2001).
13. It may be noted that if the 'early intervention' project to be piloted in 2004 is eventually implemented generally, contact disputes may become less frequent (see the web-site of the Department of Constitutional Affairs - Facilitation and Enforcement Group, Final Report, Recommendation 18).
14. The CRC is not currently implemented in domestic law, but pressure is being placed on the government to allow its influence to increase. For example, the Joint Committee on Human Rights has recommended that one of the government's key objectives in the Green Paper on inter alia the introduction of a Children's Commissioner in the UK should be to comply with the demands of the CRC. The Green Paper Every Child Matters, Cm. 5860, was published in September 2003 (www.dfes.gov.uk/ everychildmatters). The recommendation was the seventh of the Joint Committee on Human Rights in its 9th Report of Session 2002-03 on the case for a Children's Commissioner for England.
15. The private sphere is concerned with actions brought by 'private individuals' - parents, carers and children themselves, against each other, in relation to legal questions concerning children, most frequently in respect of contact and residence. The public sphere is concerned with actions brought on behalf of children, such as care proceedings, by the 'state' through local authorities against parent or carers or vice versa.
16. Often referred to as the 'tripartite principle', s 1 of the Children Act 1989 sets out the principles of no delay, no order and paramountcy.
17. For example, the concept of 'purposeful delay', e.g. where detailed assessment is required before the court can reach its decision, is rooted largely in public law proceedings under the Children Act 1989 which, arguably, contradicts the principle of 'no delay' referred to in the Children Act 1989, s 1(2) which includes the statement that 'any delay... is likely to prejudice the welfare of the child'.
18. After an initial inquiry into the law relating to children in care by the House of Commons Social Services Select Committee in 1984 the Department of Health and Social Security set up an interdepartmental working party which produced the Review of Child Law (1984) which, in turn, informed the Government's White Paper: The Law on Child Care and Family Services Cm. 62. Both the Review and the White Paper formed the basis of the public law elements of the Children Act 1989. The Law Commission undertook its own review which resulted in the publication of the Report on Guardianship and Custody No. 172 (1988). This report formed the underlying basis of the private law elements of the Children Act 1989 and its central principles, including the 'welfare principle'.
19. By providing a brand new statutory framework governing at the same time both the public and private law affecting children and removing most of the complex and piecemeal law that had been its predecessor.
20. J v C [1970] AC 668.
21. These parties include legal representatives, social services, court reporters, the children's guardians and other experts called upon to comment upon aspects of the child's upbringing.
22. See above, n 10.
23. In full, Article 8 provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
24. See: H. Fenwick 'Clashing Rights, the welfare of the child and the Human Rights Act' (2004) 67(6) MLR 889-927, which attacks the effect of the principle in the case of clashes between media freedom and the privacy of the child;
25. S. Choudhry, 'The Adoption and Children Act 2002, the Welfare Principle and the HRA 1998 - a Missed Opportunity' (2003) 15(2) CFLQ 119-38
26. H. Fenwick, D. Bonner and S. Harris-Short, 'Judicial Approaches to the HRA' (2003) 52 ICLQ 549-86 at 572-84 esp. at 582-84.
27. For a brief overview of the debates within family law and legal theory see J. Dewar 'Family Law and Theory', 16 OJLS 725-36.
28. S. Parker, 'Rights and Utility in Anglo Australian Family Law' (1992) 55 MLR 311.
29. See also J. Eekelaar, 'Families and Children: From Welfarism to Rights' in C. McCrudden and G. Chambers (eds), Individual Rights and the Law in Britain (Oxford: Clarendon, 1994), ch 10.
30. J. Herring 'The Human Rights Act and the Welfare Principle in family law - conflicting or complementary?' (1999) 11(3) CFLQ 223-35.
31. For an introduction to utilitarianism see N.E. Simmonds, Central Issues in Jurisprudence (Sweet and Maxwell, 2nd edn, 2002) ch 1
32. and J. G. Riddall, Jurisprudence (Butterworths, 2nd edn, 1999) ch 13.
33. See R. Mullender, 'Theorising the Third Way: Qualified Consequentialism, the Proportionality Principle and the New Social Democracy' (2000) 27(4) J. Law and Society 493-516.
34. See S. Maidment Child Custody and Divorce: The Law in Social Context (London: Croom Helm 1984) ch 7
35. S. Cretney, 'What will the women want next? The struggle for power within the family 1925-75' (1996) 112 LQR 110.
36. See Cartlidge v Cartlidge [1862] 2 Sw & Tr 567.
37. See above n 26 at 107-108.
38. See C. Smart, 'Power and the Politics of Child Custody' in C. Smart and S. Sevenhuijsen (eds), Child Custody and the Politics of Gender (London and New York: Routledge, 1989).
39. The central and determining metaphors in family law have become the welfare of the child and the importance of the father as an instrument of welfare and as an individual who earns legal standing. The mother seems to lose her standing... it is not clear to me that there is any longer a language available for mothers to voice their subject position in law. There is an erasure taking place which is based on a form of silencing which arises out of giving the legitimate modes of expression to those who speak of welfare... and those who speak of the significance of fatherhood... where there is a conflict there is a tendency for the welfare principle to make the moral claims by these mothers, based on the 'caring for', appear to be statements of self interest. Equally, the fathers' rights principle makes such claims appear to resemble the unacceptable and 'old fashioned' appeal to biological motherhood which is now renounced in favour of a policy of equality, C. Smart 'The Legal and Moral Ordering of Child Custody' (1991) 18 J. of Law and Society 485-500 at 486 and 494.
40. See also S. D. Sclater and F. Kaganas, 'Contact: Mothers, Welfare and Rights' in A. Bainham, B. Lindley, M. Richards and L. Trinder, Children and Their Families (Hart, 2003) for a feminist critique of the 'welfare discourse' which, they argue, perpetuates the tendency for mothers to see their position in terms of needs rather than rights, whereas fathers not only see their position in terms of rights, but are conceptualized by the legal system as the possessors of rights.
41. See also Kaganas and Schlater 'Contact disputes: Narrative constructions of "good" parents' Fem. LS (2004) 12(1), 1-27.
42. R. Collier, Masculinity, Law and the Family (London: Routledge, 1995) at 20. He finds: 'Fathers are expected only to demonstrate "paternal heterosexual presence"'.
43. See A. Bainham, above n 7 ch 5 at 86.
44. For a comprehensive historical overview of this shift and a chronology of relevant legislation see S. Cretney, above n 26.
45. See also Krieken 'The "Best Interests of the Child" and Parental Separation: On the "Civilizing of Parents"' (2005) 68(1) MLR 25-48 who provides a historical overview of the concept of welfare within the context of the emotional constitution of family life.
46. [1962] 1 WLR 445 at 448.
47. [1985] FLR 445.
48. [1988] 1 All ER 577 at 588.
49. He considered the approach of the CA as formulated in J v C [1970] AC 668 in determining whether in wardship proceedings a natural parent's access to the child should be terminated and the child placed for adoption.
50. See above n 36 at 825.
51. See J. Herring's analysis of the evidential differences between the approach of the HRA and the CA above n 23.
52. [1995] 2 FLR 124 at 128.
53. In some cases the reasons for the hostility would be well-founded, as in instances where there had previously been domestic violence. See: Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48
54. Re M (Minors) (Contact: Violent Parent) [1999] 2 FCR 56
55. and Re C (a child: Contact) [2004] All ER (D) 367 (Jul).
56. See: Re W (A Minor) (Contact) [1994] 2 FLR 441
57. Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124
58. Re M (Contact: Supervision) [1998] 1 FLR 727.
59. For a general critique of Parental Alienation Syndrome and its use within the family courts see C. D. Bruch, 'Parental Alienation Syndrome and Alienated Children - getting it wrong in child custody cases' (2003) 14(4) CFLQ 381.
60. In Re J (A Minor) (Contact) [1994] 1 FLR 729, for example, a 10 year old's experience of contact had been characterized by conflict and distress to such an extent that he had refused to see his father. At first instance, the trial judge concluded that the mother's clear, implacable hostility to ordering contact was causing so much distress to the son as to render contact with his father against his best interests. The Court of Appeal implicitly approved the judge's balancing of the harm caused to the child by refusal of contact against the harm caused by allowing contact. The courts have, however, made it plain that the implacable hostility of one parent does not inevitably prevent them from making contact orders, and there are a number of cases where contact has indeed been ordered
61. see: Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48
62. Re M (Minors) (Contact: Violent Parent) [1999] 2 FCR 56
63. Re S (Children) (Uncooperative Mothers) [2004] EWCA Civ 597 [2004] 2 FLR 710
64. And V v V (Children) (Contact: Implacable Hostility) [2004] EWHC 1215 [2004] 2 FLR 851.
65. See, e.g. G. Phillipson 'Transforming Breach of Confidence: Towards a Common Law Right of Privacy under the Human Rights Act' (2003) 66 MLR 726-58 (on resistance to consideration of Article 8);
66. H. Fenwick and G. Phillipson, Media Freedom under the Human Rights Act (OUP 2006), forthcoming;
67. H. Fenwick, D. Bonner and S. Harris-Short see above n 20
68. And S. Choudhry, above n 20. It is suggested that a reluctance to engage fully with the Convention under the HRA in these different areas of law has sometimes been evident but which is much more clearly marked at times in the field under discussion, as the examples from cases used below indicate. At times such reluctance appears to amount to a whole-hearted determination to avoid such engagement.
69. [1998] AC 806.
70. Ibid at para 812.
71. Ibid at para 825.
72. See J. Fortin, 'The HRA's impact on litigation involving children and their families' (1999) 11(3), CFLQ 252. Her recommendation accepted that evidential differences might exist between claims based on rights, as opposed to claims based on welfare (as argued by Herring: See above n 23). Her argument was, however, subject to the view that the courts would at least acknowledge when dealing with contact disputes that the non-resident parent had a prima facie right to family life which would be infringed by an order made refusing him/her contact. Her key concern was that the implementation of the HRA could enable the courts, in deliberating on parental contact disputes, to favour parents' claims regarding infringements of their own rights under article 8(1), at the expense of their children's best interests. Fortin has since acknowledged that some of these concerns were exaggerated, particularly in reference to the removal of children into state care.
73. See J. Fortin, above n 7 at 56-57.
74. See J. Fortin, above n 7 at 59. She finds: 'the English courts' obvious relief at discovering that the Strasbourg jurisprudence incorporates the welfare principle, has led them to largely ignore the more technical demands of article 8(2). In particular, they apparently see no need to consider whether the infringement of the parent's rights is proportionate to the child's immediate needs'.
75. [2001] Fam 473.
76. Ibid at 487. 'The acknowledgement of child welfare as paramount... is of course enshrined in article 3(1) of the United Nations Convention on the Rights of a Child'. The Convention in fact uses the word 'primary'.
77. See S. Harris-Short, H. Fenwick, D. Bonner, above n 20 at 582-83.
78. See above n 50 at 487.
79. [1997] 23 EHRR 134 at para 78.
80. In summarizing the relevant considerations in such cases, Dame Butler-Sloss in Payne made it clear that the welfare of the child was always paramount; there was no presumption created by s 13(1) (b) in favour of the applicant parent; there had to be genuine motivation for the move; the effect upon the applicant parent and the new family of the child of a refusal of leave was very important; and that the reasonable proposals of parents with a residence order wishing to live abroad 'carry great weight'. Acknowledgment was also made that not only was the effect upon the child of the denial of contact with the other parent 'very important', but in terms of the non-resident parent: 'the opportunity for continuing contact between the child and the parent left behind may be very significant': Payne v Payne [2001] Fam 473, at 499-500.
81. Payne has subsequently been applied to grant leave to permanently remove children from the jurisdiction without any explicit consideration of the non resident pArents Article 8 rights: See Re S (children: application for removal from jurisdiction) [2004) All ER (D) 172 (Nov)
82. and G v G [2005] EWCA Civ 170.
83. For a detailed exposition of Re B see S. Harris-Short, 'Re B (Adoption: Natural Parent) Putting the child at the heart of adoption?' (2002) 14(3) CFLQ 325.
84. [2002] 1 FLR 196.
85. See also S. Choudhry above n 20.
86. The application was initially granted but set aside by the Court of Appeal. A residence order was substituted in favour of the father and an order was made prohibiting the mother from making any application under the CA relating to the child without leave of a High Court judge.
87. Which dealt with adoption applications by natural parents.
88. s 3(1) provides: 'So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights'. If it is impossible to render the legislation compatible with the right(s) it remains valid (s 3(2)(b)) and therefore must be applied.
89. See above n 56 at para 31.
90. See S. Choudhry, above n 20.
91. See also: A. Bainham, 'Taking Children Abroad: Human Rights, Welfare and the Courts' (2001) CLJ 489 at 492
92. A. Bainham, above n 5.
93. Under s 6(1) 'It is unlawful for a public authority to act in a way that is incompatible with a Convention right'. Courts are public authorities under s 6(3)(a). Courts can only escape this obligation if under s 6(2)(a) 'as a result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions'. s 6(2) (a) or (b) are inapplicable, as argued below, since s 1(1), CA can be interpreted compatibly with the Convention rights, in particular Art. 8.
94. Although there is some evidence of a return to the language of rights, it appears to be limited to the rights of the child and does not extend to parents. See, for example, A v L (Contact) [1998] 1 FLR 361 at 365 in which Holman J described contact as "a fundamental right of a child".
95. [2001] Fam 260 CA, at para 294.
96. As Harris-Short puts it: 'it could certainly be argued... that the welfare principle... would have to be reinterpreted under s3HRA to give greater recognition to the parents' interests... in the period immediately preceding implementation judicial opposition to any such 'watering down' of the welfare principle began to emerge. The opposition now marks the post-implementation jurisprudence'. See S. Harris-Short, H. Fenwick, D. Bonner, above n 20 at 576.
97. For example, in Re A (Children): Contact [2003] WL 214 91866 no mention was made of the father's Article 8 right to respect for his family life in relation to the level of contact allowed with his children.
98. Similarly, in Re B (Children) (Removal from Jurisdiction) [2003] 2 FLR 1043 the father's Article 8 right to respect for family life was not mentioned in relation to the mother's intention to leave the country with her new partner so that he could return to his country of origin where they could both settle, with the child.
99. Again, in In the matter of W (a child) [2003] EWCA Civ 117 the Court of Appeal made no reference to the Article 8 right to respect for family life of the mother who was seeking an order for contact with her child. No contact had been allowed on the basis of the father's unremitting hostility towards her. No contact order was made but the proceedings were adjourned with a view to seeking the aid of social services in addressing the father's attitude to the mother.
100. In Wilson v Auld [2004] All ER (D) 80 (Nov) a mother successfully appealed a decision refusing her leave to temporarily remove her child from the jurisdiction for two years due to the undervaluing of the effect the refusal would have on her career development and prospects and the application of too high a test: Payne v Payne (it being applicable to applications concerning permanent removals). Here no mention was made of the fathers Article 8 rights.
101. See also G v G [2005] EWCA Civ 170 where a mothers appeal from refusal for leave to return to Argentina with the children was allowed, again, without any express consideration of the fathers Article 8 rights.
102. [2003] 2 FLR 1054.
103. See on this case - O'Donnell 'Re C (Welfare of Child: Immunisation) - room to refuse? Immunisation, welfare and the role of parental decision making' (2004) CFLQ 16(2) 213-29
104. And Huxtable 'Medical treatment - children - welfare principle - immunisation - expert evidence - parental rights' (2004) J Soc Wel & Fam L 26(1) 69-77.
105. Ibid at para 337.
106. [2004] WL 62115 at paras 15 and 27.
107. The court relied on Yousef v Netherlands [2003] 36 EHRR 20, para 73 to the effect that if any balancing of interests is necessary, the interests of the child must prevail.
108. [2003] EWCA Civ 17979 A father was seeking to establish a right of indirect contact - which had been denied in the lower court - with his four-year old child. He also sought to have the period within which he could make no application for direct contact reduced from five years to two years. The Court of Appeal found in favour of the father's application.
109. Ibid at paras 9 and 12.
110. 2004] 1 FLR 1226.
111. Subsequent intractable contact disputes dealing with implacable hostility appear to have been influenced by Munby J's comments, but they do not mention the Article 8 rights of the family members or rely on ECHR jurisprudence. See: Re S (Children) (Uncooperative Mothers) [2004] 2 FLR 710
112. V v V (Children) (Contact. Implacable Hostility) [2004] 2 FLR 851.
113. He said, at para 35: 'Not least in the light of the Strasbourg jurisprudence there is no room for complacency about the way in which we handle these cases'. The Court of Appeal has sounded the wake-up call. As Thorpe LJ said in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736
114. 3] 1 FLR 531 at para 25: 'I reject [counsel's] dismissive submission that the Strasbourg cases add nothing to the domestic jurisprudence. Those cases as they stand suggest that the methods and levels of investigation that our courts have conventionally adopted when trying out issues of alienation may not meet the standards that Arts 6 and 8... require. There are policy issues here that the Government and the judiciary may need to consider collaboratively'.
115. At para 26.
116. He said (para 3) 'I now hand down this judgment in public as a contribution to what Wall J in A v A [2004] EWHC 142 (Fam) at para. 22 referred to as "the ongoing debate about the role of the courts in contact and residence disputes". On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D. (para. 1)... [He is entitled to... express the view that] the last two years of the litigation have been an exercise in absolute futility... (para. 2)... Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view (para. 4)'.
117. See: S. D. Sclater and F. Kaganas in A. Bainham, B. Lindley, M. Richards and L. Trinder, above n 30
118. A. Bainham, B. Lindley, M. Richards and L. Trinder, above n 7, ch 5;
119. J. Masson 'Thinking about contact: A social or a legal problem?' 12 CFLQ 15
120. J. Herring, above n 23 esp. at 233.
121. Although Fortin in her very recent work (see above n 7) expresses sympathy with a rights-based approach, she has also earlier expressed unease: See J. Fortin, above n 48 at 255
122. J. Fortin, 'Rights Brought Home for Children' (1999) 62(3) MLR 350 esp. at 369-70.
123. See: S. Harris-Short esp. at 584
124. H. Fenwick and S. Choudhry, above n 20.
125. The comment does not imply that all judges unreservedly embrace the welfare principle: See, e.g. Lord Nicholl's adverse dictum in Re L(minors) (Police Investigation: Privilege) [1997] AC 16 at 33B.
126. For academic criticism see J. Herring 'Parents and Children' in Family Law, Issues, Debates and Policy (Willan, 2001) 164-66 for an outline of the main problems with the principle. In summary it is argued that: The principle produces a narrow perception of welfare; it is too uncertain, thereby leading to unpredictable outcomes and frequently obscuring the real basis of the decision; further, its unpredictability has led to an increase in the costs of litigation.
127. See also J. Herring, Family Law (Longman, 2001) at 349-50
128. A. Bainham, above n 5
129. J. Eekelaar, above n 6.
130. H. Reece, above n 1, argues that the principle allows the courts to disregard the interests of homosexual parents or carers on the basis of a particular view of the welfare of the child.
131. See, e.g. A. Bainham, 'Non-intervention and judicial paternalism' in P. Birks (ed), Frontiers of Liability (Oxford, OUP, 1994);
132. H. Reece, above n 1.
133. See, e.g. J. Eekelaar, above n 6.
134. See J. Herring, above n 78 at 164-66.
135. See J. Eekelaar, above n 6; his position is discussed below.
136. See J. Fortin above n 7 esp. at 248-52.
137. See A. Bainham, above n 79.
138. See also A. Bainham, 'Honour Thy Father and Thy Mother: Children's Rights and Children's Duties' in G. Douglas and L. Sebba (eds), Children's Rights and Traditional Values (Aldershot: Dartmouth, 1998).
139. See in particular the approach in Johansen v Norway [1997] 23 EHRR 134, discussed below.
140. See J. Herring, above n 78.
141. See J. Eekelaar, above n 6.
142. Ibid at 244.
143. This approach discussed by Eekelaar was that as set out by J. Fortin, above n 48 at 250.
144. Above n 6 at 242.
145. See: Re S(a Child) [2003] 2 FCR 577
146. Campbell v MGN [2004] May 6 HL.
147. The idea of a dual exercise in proportionality was first put forward by H. Fenwick and G. Phillipson, 'The Doctrine of Confidence as a Privacy Remedy in the Human Rights Act Era' (2000) 63 (5) MLR 660-93
148. For recent discussion see: G. Phillipson, above n 44
149. H. Fenwick, above n 20, and see further text to n 144-47 below.
150. Above, n 7 esp. chs 1 and 19.
151. Lord Slynn in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 found: 'In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights' (at para 26).
152. In Articles 7, 8, 9 CRC there is no differentiation between the mother and the father in terms of caring responsibilities.
153. There are significant exceptions to this position: For example, a father who is not married to the mother and who has had no involvement with the child is unlikely to be viewed as having family life that requires respect: G v the Netherlands [1990] 16 EHRR 38 (the link between a sperm donor and a child was not found to establish family life).
154. The inferior legal position in the UK of an unmarried father compared to that of the mother does not violate Article 8: B v UK [2000] 1 FLR 1.
155. Private life is not usually considered separately, although in some circumstances this might be a significant possibility. A private life claim would also be balanced against a family life one on a basis of presumptive equality. This approach is also taken to clashes with the other qualified Convention rights: See Twenty-Twenty-Television v UK [1998] 25 EHRR CD 159, discussed below - text to and within n 112. The approach would differ in relation to the unqualified or non-materially qualified rights: For example, if a father and mother were opposed as to a form of education or as to religious practices it would be a violation of Art 2, Protocol 1 (education of children in accordance with parental convictions) or Art 9 (freedom of religion) read with Art 14 to enable - through the courts - the father's wishes to prevail over the mother's. A private life claim would also be balanced against a family life one on a basis of presumptive equality. This approach is also taken to clashes with the other qualified Convention rights: See Twenty-Twenty-Television v UK [1998] 25 EHRR CD 159, discussed below - text to and within n 112. The approach would differ in relation to the unqualified or non-materially qualified rights: For example, if a father and mother were opposed as to a form of education or as to religious practices it would be a violation of Art 2, Protocol 1 (education of children in accordance with parental convictions) or Art 9 (freedom of religion) read with Art 14 to enable - through the courts - the father's wishes to prevail over the mother's.
156. An Article 8 claim of a family life right to chastise a child would fail: See A v UK [1999] 27 EHRR 611 (a violation of Art 3 was found in respect of the beating of a boy by his step-father, with an implement where the law had failed to protect the boy; reference was made to Art 19 CRC).
157. See Eekelaar, above n 6.
158. See Olsson v Sweden (No. 2) (A/250) [1992] 17 EHRR 134 at para 68.
159. For a general discussion of the concept of the margin of appreciation see C. Ovey and R.C.A. White, Jacobs & White, The European Convention on Human Rights (Oxford, 3rd edn, 2002) at 210-15,
160. And for an example of its application concerning Art 8 of the ECHR see Soderback v Sweden [1998] EHRR 342; the Court held that, due to the infrequent and limited nature of the contact between the applicant father and his child, there had been no violation of the father's Art 8 rights: The decision to place the child for adoption was not only clearly justified on the facts of the case but also that it fell well within the State's margin of appreciation to do so.
161. K and T v Finland [2001] 31 EHRR 18, para 166
162. And Kitzner v Germany [2002] 35 EHRR 25, para 67.
163. [2000] 2 FLR 486.
164. [T]he authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access... Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed'. Ibid at para 49.
165. See also Haase v Germany [2004] 2 FLR 39 [2005] 40 EHRR 19 at para 89.
166. For example, in Johansen v Norway 23 EHRR 33, at para 64 the Court stated: 'perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area... the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care'.
167. [2003] 36 EHRR 18.
168. The Court said: 'Even having regard to the national authorities' margin of appreciation, the Court considers that the making of the emergency care order in respect of J and the methods used in implementing that decision were disproportionate in their effects on the applicants' potential for enjoying a family life with their new-born child as from her birth. This being so, whilst there may have been a "necessity" to take some precautionary measures to protect the child J, the interference in the applicants' family life entailed in the emergency care order made in respect of J cannot be regarded as having been "necessary" in a democratic society' (at para 168). See also Johansen v Norway [1997] 23 EHRR 134
169. See Otto-Preminger Institut v Austria [1994] 19 EHRR 34
170. Tammer v Estonia [2003] 37 EHRR 43.
171. [2000] 2 FLR 486.
172. [1997] 23 EHRR 134.
173. Ibid at para 43.
174. This reasoning was also adopted in Kosmopolou v Greece [2004] 1 FLR 427 in finding a violation of the applicants Art 8 rights had occurred due to failures in the procedural approach, adopted by the domestic courts, in adequately determining the question of access to her daughter. The applicant, despite possessing visiting rights, had, consequently, been unable to see her daughter or establish regular contact with her. At para 27 the Court stated: 'The Court reiterates in this respect that it is of paramount importance for parents always to be placed in a position enabling them to put forward all arguments in favour of obtaining contact with the child and to have access to all relevant information which was at the disposal of the domestic courts'.
175. [1998] 25 EHRR CD 159.
176. The mother and the media applicants both also complained of a breach of Art 10 (the guarantee of freedom of expression) but the argument was conducted under Art 8.
177. She further submitted that the courts were not well placed to make the assessment that they had; the judges were elderly males of an elite class unlikely to have had experience of raising children with handicaps like C and they could not possibly know how the transmission of the programme would affect C.
178. Olsson v Sweden (No. 2) [1994] 17 EHRR 134, para 90
179. And Hokkanen v Finland [1995] 19 EHRR 139, para 57.
180. The Commission took into account the fact that the High Court had taken the view that any short-term benefit for C deriving from the publicity was outweighed by the 'serious consequences' which transmission of the programme would entail for her in terms of extended publicity.
181. The ECHR itself contains few explicit references to children and their rights, which is generally believed to be due to the era of its inception. There are only two explicit references - Art 5 (which guarantees the right to liberty) makes additional provision for the detention of a minor in para 1(d) and Art 6 (which guarantees the right to a fair trial) which provides an exception to the right to a public hearing in the case of juveniles if necessary.
182. See U. Kilkelly, 'The best of both worlds for Children's rights? Interpreting the European Convention on Human Rights in the light of the UN Convention on the Rights of the Child' (2001) 23 Human Rights Quarterly 308-326
183. And M. Woolf 'Coming of Age? - The Principle of the Best Interests of the Child' (2003) 2 EHRLR 205-21 for an overview of how the principle has been interpreted by the European Court of Human Rights and the UK courts within the context of the UN Convention on the Rights of the Child 1989.
184. The UK has ratified the CRC and is therefore bound under international law to comply with its requirements. It is still, however, not part of UK law. For a feminist critique of the CRC see F. Olsen, 'Children's Rights: Some Feminist Approaches to the UN Convention on the Rights of the Child' in P. Alston, S. Parker and J. Seymour (eds), Children, Rights and the Law (Clarendon Press, 1992).
185. See also J. Eekelaar, 'The Importance of Thinking That Children Have Rights' in the same volume, for a theoretical explanation of the significance of the rights declared by the CRC on behalf of children.
186. It was found: 'a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the court will attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent' [1996] 23 EHRR 33, at para 78.
187. See also Gorgolou v Germany [2004] 1 FLR 894 para 37
188. Kosmopolou v Greece [2004] 1 FLR 427 para 23
189. and Haase v Germany [2004] 2 FLR 39.
190. [2000] 2 FLR 486 at para 50. In L v Finland, Application No 25651/94, at para 118 (another public law case) the Court stated: 'the consideration of what is in the best interests of the child is of crucial importance'.
191. [2003] 36 EHRR 20.
192. Ibid at para 73.
193. See S. Choudhry, above n 20 at 130.
194. [2004] 1 FLR 142 para 98.
195. [1996] 1 FLR 289.
196. [2001] 31 EHRR 7.
197. [2004] 1 FLR 894 at para 43.
198. [2004] 38 EHRR 15 at para 44.
199. [2004] 2 FLR 39.
200. [2004] 1 FLR 427.
201. Although courts may consider the impact of their decisions on parents when reaching such decisions there is, however, no requirement to do so within s 1 of the Children Act 1989 or indeed the statutory checklist contained in s 1(3).
202. See S. Choudhry, above n 20.
203. [1998] 1 FLR 762, CA.
204. Ibid at 773-74.
205. Hedley J in the Family Division of the High Court in Re S, unrep, February 19, 2003. He found that the principle did not apply but considered that even if the child's welfare had been the paramount consideration, he would have decided that the press reporting could not be curbed even though he had the power to curb it. The Court of Appeal disagreed ([2003] 2 FCR 577; [2003] 147 SJLB 873), Lady Justice Hale finding that when the child's welfare is the paramount consideration, 'it rules on or determines the issue before the court. It is the trump card' (emphasis in the original) at para 62.
206. Medway Council v BBC [2002] 1 FLR 104.
207. The Court of Appeal in Re S, above n 135.
208. See H. Fenwick, above n 20.
209. The concept is argued for by H. Rogers and H. Tomlinson, 'Privacy and Expression: Convention Rights and Interim Injunctions' (2003) EHRLR (Privacy - Special Issue) 38 at 41.
210. In Cream Holdings v Bannerjee [2003] 2 All ER 318 at para 41 SimonBrown LJ, speaking for the majority, said: 'It is one thing to say... that the media's right to freedom of expression, particularly in the field of political discussion, 'is of a higher order' than 'the right of an individual to his good reputation'; it is, however, another thing to rank it higher than competing basic rights [Convention rights]'.
211. Re S (a Child) [2003] 2 FCR 577.
212. [2001] QB 967 1005 at para 24.
213. [2003] 3 WLR 542 at para 6. Lady Justice Hale (as she then was), who gave the leading judgement, relied on Lord Woolf's dicta in A v B to the effect that '[the court must] attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other Article to be taken into account'.
214. She had to consider under Art 10(2) what restriction, if any, was needed to meet the legitimate aim of protecting the rights of the child. If prohibiting publication of the family name and photographs was needed, the court had to consider how great an impact that would in fact have upon the freedom protected by Art 10, taking into account the greater public interest in knowing the names of persons convicted of serious crime than of those who are merely suspected or charged.
215. The two judges in the majority disagreed with this finding, considering that although the balancing exercise outlined by Lady Justice Hale was the correct approach, and should have been carried out, the result reached at first instance - that the restraining order should be discharged - would have been reached even if it had been properly carried out. They considered that the first instance judge had not carried out the exercise correctly, but had had factors relevant to the question of proportionality under Art 8 sufficiently in mind.
216. In Angela Roddy (A Minor) [2004] EMLR 8
217. 4] 1 FCR 481 the parallel analysis from the CA decision in In Re S was applied by Munby J.
218. [2004] judgment of May 6, 2004.
219. Ibid see paras 12 and 113 of the judgment.
220. Judgment of October 29, 2004 [2004] UKHL 47. Lord Steyn gave the leading judgment which was unanimously endorsed by the other four Law Lords
221. At para 17.
222. See in particular J. Eekelaar, above n 6
223. See also text to n 77 and n 84 above.
224. See D. Archard, Children, Rights and Childhood (1993, Routledge) esp. at 89.
225. See F. Raitt 'Judicial discretion and methods of ascertaining the views of a child' (2004) CFLQ 16(2) 151-64 on how this aspect is currently dealt within Scotland
226. and V. May and C. Smart, 'Silence in court? - hearing children in residence and contact disputes' (2004) CFLQ 16(3), 305-15 for evidence of concern about the lack of opportunity for children, particularly younger children, to have an influence on proceedings.
227. See J. Eekelaar, above n 6 and text to n 87 above.
228. See n 87 and associated text.
229. [1994] 18 EHRR 342 para 44.
230. [1997] 23 EHRR 134 para 52.
231. [2001] 33 EHRR 4 para 51.
232. For an example of such a case where the outcome would remain the same if the parallel analysis was utilized, see Re C (a child: Contact) [2004] All ER (D) 367 (Jul). In this instance the father was disallowed contact for 3 years due to his violence to the mother and child and the mother needed time for psychotherapy in order to be able to deal with contact.
233. Art 2 guarantees the right to life, Art 3 guarantees freedom from torture, inhuman or degrading treatment. A physical attack on a child or woman could readily be viewed as degrading treatment (Costello-Roberts v UK A 247-C [1993]). Arguably, the court is itself bound (s 6(1), HRA) to avoid placing a child or woman at risk where such a risk is readily foreseeable (see Osman v UK [1998] 5 BHRC 293; A v UK [1999] 27 EHRR 611).
234. This is clearly a controversial argument that cannot be fully developed here: See further H. Fenwick, Civil Liberties and Human Rights (Cavendish, 3rd edn, 2002) at 39-40. These arguments, of course, apply equally to a man who is at risk from his partner. The court is also under a duty to consider the child's physical and emotional needs (s 1(3)(b), CA). The term 'consider' could be strengthened by reference to the requirements of these Articles under s 3(1), HRA so that the risk to the child was diminished.
235. However, a family relationship might be found to exist in a range of circumstances: In Boyle v UK [1994] 19 EHRR 179 it was found to exist in respect of an uncle who had known the child from birth.
236. [2000] 2 FLR 486 para 47.
237. Olsson v Sweden (No. 2) (A/250);
238. [1992] 17 EHRR 134 para 90.
239. See Johansen v Norway [1997] 23 EHRR 134 para 78.
240. See the discussion of this issue in H. Rhoades and M. Harrison The Family Law Reform Act 1995: The first three years, Final Report (2000), University of Sydney and Family Court of Australia.
241. It may be noted that in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260, the Court of Appeal found that a small degree of domestic violence would not result in an automatic denial of contact.
242. See Hansen v Turkey [2004] 39 EHRR 18 para 97.
243. See B. Simpson, J. Jessop and P. McCarthy, 'Fathers After Divorce' in A. Bainham, B. Lindley, M. Richards and L. Trinder (eds), Children and Their Families (Hart, 2003) ch 11.
244. See C. Smart, V. May, A. Wade and C. Furniss, Residence and Contact Disputes in Court, Research Unit Dept of Constitutional Affairs No 6/03 (2003) at 16.
245. See M. Hetherington, M. Cox and R. Cox 'Long Terms Effects of Divorce and Remarriage on the adjustment of children', 24 Journal of the American Academy of Child and Adolescent Psychology 518-30 (1985).
246. See S.D. Sclater and F. Kaganas, above n 30 esp. at 161-69.
247. See also J. Wallbank, 'Castigating Mothers: The Judicial Response to Wilful Women in Cases Concerning Contact' (1998) 20(4) J Soc Wel & Fam L 357-77.
248. H. Rhoades "'No contact mothers": Reconstructions of motherhood in the era of the "New Father"' (2002) 16(1) IJLPF 71-94.
249. See Ministry of Home Affairs v Fisher [1980] AC 319 at 328.
250. In the Court of Appeal in R (on the Application of the Prolife Alliance) v British Broadcasting Corporation [2002] 2 All ER 756, paras 33 and 34. He said: 'Our duty is to develop, by the common law's incremental method, a coherent and principled domestic law of human rights. In doing it, we are directed by the HRA (s6) to insist on compliance by public authorities with the standards of the Convention, and to comply with them ourselves. We are given new powers and duties (HRA, ss.3 and 4) to see that that is done. In all this we are to take account of the Strasbourg cases (s2)... The need to make good an autonomous human rights jurisprudence is prompted by a further consideration. Treating the ECHR text as a template for our own law runs the risk of an over-rigid approach. Travelling through the words of provisions like Article 10(2), with stops along the way to pronounce that this or that condition is met or not met, smacks to my mind of what Lord Wilberforce once condemned as the "austerity of tabulated legalism"'.
251. See U. Kilkelly, above n 116 at 313; she finds that a number of features of the ECHR make the use of the CRC 'as an interpretive guide both possible and valuable'.
252. For a recent, comprehensive discussion, see R.A. Edwards, 'Judicial Deference under the Human Rights Act' (2002) 65(6) MLR 859-82.
253. See R v DPP, ex parte Kebilene and others (1999] 3 WLR 972 at 1043, per Lord Hope.
254. For the notion of deference in respect of special expertise, see in a different context R (on the application of Prolife Alliance)v BBC [2003] 2 WLR 1403, HL.
255. The application of the welfare principle and the 'welfare science' represents in effect an area of discretion - on the basis of deference to welfare expertise. There is now an established automatic reference to the Court Reporter as the 'judge' of what is in the child' best interests and there is authority to the effect that judges have to explain why they have not followed the recommendations of the Reporter and the Childrens' Guardian.
256. [2003] EWCA Civ 1149
257. [2003] 2 FLR.
258. See J.Eekelaar, above n 6 at 242.
259. See Re H (Application to Remove from Jurisdiction [1998] 1 FLR 848 and Re B (Children) (Removal from Jurisdiction) [2003] 2 FLR 1043
260. As further examples of the situation discussed which might have been decided differently under a rights-based analysis. See also Re C [2000] 2 FLR 457 where leave to relocate was refused.
261. See B. Simpson, J. Jessop, P. McCarthy, above n 167, ch 11 at 203.
262. Munby J made this point in In the matter of D [2004] 1 FLR 1226 at para 8.
263. See, e.g. S. Bridge, ch 1 esp. pp 41-43 in J. Herring (ed.) 'Parents and Children' in Family Law, Issues, Debates and Policy (Willan, 2001).
264. See also Krieken, above n 33 who provides a historical overview of the concept of welfare within the context of the emotional constitution of family life, charting the turn to a co-parenting model from the 1970s onwards and the rise of the concept of the 'civilized divorce'.
265. See R. Collier 'A Hard Time to be a Father?: Law, Policy and Family Practices' (2001) 28(4) Journal of Law and Society at 520-45
266. R. Collier, 'In Search of the 'Good' Father: Law, Family Practices and the Normative Reconstruction of Parenthood' in J. Dewar and S. Parker (eds), Family Law: Processes, Practices and Pressures (Kluwer, 2003).
267. See further R. Deech, 'The Rights of Fathers: Social and Biological Concepts of Parenthood' in J. Eekelaar and P. Sarcevic (eds), Parenthood in Modern Society (London: Martinus Nijhof, 1993);
268. J. Wallbank 'The Campaign for Change of the Child Support Act 1991: Reconstituting the "Absent" Father' (1997) 6(2) Social and Legal Studies 191-216
269. And J. Wallbank 'Clause 106 of the Adoption and Children Bill: Legislation for the "good" Father' (2002) 22(2) LS 276-296 at 277.
270. See also F. Olsen, above n 117 at 204 in which she notes Carol Gilligan's point that 'growth for men may well lie in their adoption of an ethic of care while growth for women may lie in a greater adoption of an ethic of rights'.
271. As B. Neale puts it: 'the continuing dominance of the welfare orientation in private law proceedings seriously limits children's participation': 'DiClogue with children: children, divorce and citizenship', 9(4) Childhood 455-475.
272. See J. Fortin, above n 7 esp. chs 1, 2 and 19.
273. See further on the rise of the 'new individuality' in family law: J. Lewis, 'Family Policy in the Post-War period'
274. and S. Katz, 'Individual Rights and Family Relationships' in S. Katz, J. Eekelaar and M. Maclean (eds), Cross Currents (2000, OUP) who describe the rise of individualism as the most important event in family law in the last 50 years.