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The Welfare Test and Human Rights - where's the beef in the sacred cow?

Robin Tolson QC reconsiders the section 1 welfare test of the Children Act 1989 and its interaction with the ECHR

The Welfare Test and Human Rights: where's the beef in the sacred cow?

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Robin Tolson QC, Outer Temple Chambers

Why has the Human Rights Act 1998 made so little difference to children involved in the family justice system since it came into force on 2nd October 2000? Lip service is regularly paid to Convention principles, but in truth it is difficult to find a reported children's case in which Article 8 has made a difference to the outcome. Is our system perfectly compliant? Are lawyers not identifying the weaknesses and presenting the right arguments? Are our judges impervious to European law?

One reason for the lack of impact may lie in the sacred cow of the law relating to children: the welfare test set out in section 1 of the Children Act 1989. It is so broad in the discretion it creates and so dominant in its position within domestic proceedings that, I suggest, it does not permit a rights-based examination of the case.

The welfare test has been law for a long while. It first appeared in statute in 1925 when section 1 of the Guardianship of Infants Act 1925 proclaimed:

"Where in any proceedings before any court…the custody or upbringing of an infant…is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration".

It will be apparent that the language remains the same.

The House of Lords in J v C [1970] AC 668 effectively ruled out any idea that parental rights might restrict the section 1 welfare test. As Lord Donovan put it, referring to section 1 of the 1925 Act:

"It is incredible to me that Parliament would … not have incorporated a proviso preserving the alleged 'rights' of the natural parent if it had intended to preserve them. I think the section means just what it says – no more and no less".

"Paramount", according to my dictionary, means "supreme". Certainly few would doubt that, as interpreted on a daily basis by the courts, considerations other than the welfare of the child (whatever that may be) scarcely feature. There is, I suggest, no sense of a balancing of rights or interests.

In truth the so-called welfare test is not a 'test' at all. To be a test it would have to be a fixed standard determined at the outset against which the result in the case would have to be judged. But in this exercise, by definition a judge would have to begin with that which he or she would have to find at the end of the process. Nor does it not take into account weight of evidence: some slight balance in favour of a child's welfare will always be enough no matter what the interests or the case on the other side. In fact the welfare test is just a broad, it might be said almost unlimited, discretion to do what a judge thinks is right. The outcome is then self-justifying because the only yardstick available is the welfare of the child. The system is one half of wardship ('parens patriae') but without the unlimited power to implement the decision. Most lawyers trade in facts on the one hand and in rights and duties on the other. The latter are applied to the former. But not lawyers in children's cases. The language of rights and duties in which the Convention trades simply has no part to play in the exercise. There are exceptions: contact under section 34 CA89 is expressed in this language. However, with this exception in essence parents do not have rights under the Act. Consequently, it is not surprising if the Convention fails to make an impression. As the two approaches are not compatible at the system level, it is no use expecting them to interact.

It is therefore unsurprising that the only examination of rights-based Convention principles comes in many cases in the form of a check after the decision has been made rather than as an integral part of the process. Even this is usually a token gesture. If the decision to be made is in the interests of the child then, so the judgment will often read, it must be necessary within the meaning of Article 8(2) as being "for the protection of health or morals, or for the protection of the rights and freedoms of others". It is therefore proportionate and all is well. No more detailed exercise is necessary.

Is this really good enough? Is it not apparent that a revised section 1 of the Children Act 1989 would have a very different meaning if it provided, say: "When a court determines any question with respect to the upbringing of a child it shall balance the interests of the child with those of the parent, attaching particular importance to the interests of the child which depending on their nature and seriousness may override those of the parent"? Yet this is precisely the test that Strasbourg has laid down in Johansen v Norway (1996) 23 EHRR 33 and many other cases.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 FLR 224 confirmed that parents had rights in respect of their children, albeit the dwindling right which, as identified by Lord Denning MR in the earlier case of Hewer v Bryant (1970) 1 QB 357 at 369, "starts with a right of control and ends with little more than advice". No child in the land – outside of court proceedings - can be said to have interests which are "supreme". Any parent regards him or herself as having rights – important, powerful, rights - and yet the Act proceeds as if the only entity with any rights in respect of the child, other than the child itself, is the court. The child has rights, but even the child's rights are curtailed once it is the subject of proceedings under the CA90. In reality from that point it has a right only to have the court decide issues in what the court regards as the child's best interests. Thus, no matter what its age, a child's wishes are never more than a factor to be taken into account.

Outside the court arena, all children must give way to the competing demands of other family members – of its parents, of its brothers and sisters. Why, therefore under our system, is the subject child alone the object of special protection? What of the teenage mother, herself a minor, whose baby is the subject of the application? What of the brothers and sisters in the family? Why does a human being deserve complete protection at 17 and no special protection at 18? Why does the welfare test not recognise the sliding scale of vulnerability and need which childhood represents? Family life is a balance.

The most often cited human rights case in the last 2 years relating to children is Yousef v Netherlands [2003] 1 FLR 210. The sigh of relief from judges as they refer to it is almost audible:

"the court reiterates that in judicial decisions where the rights under Article 8 of parents and those of a child are at stake, the child's rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail" (paragraph 73).

This language is sufficiently close to section 1 as to cause domestic judges no difficulty in adopting it verbatim. However, it is important not to take it out of context. The very next paragraph in the judgment continues:

"the court has not found any indication that the domestic courts in striking the balance they did between the rights of the applicant and those of the child, failed to take the applicant's rights sufficiently into account".

Furthermore, both the previous authorities referred to by the court in support (Elsholz v Germany (2002) 34 EHRR 58 and TP and KM v United Kingdom (2002) 34 EHRR 2) expressly approve the Johansen approach (see paragraphs 71 and 49 respectively). Moreover, Yousef was an unusual case on its facts. A largely absentee Egyptian father of a girl aged about 7 at the material time sought to 'recognise' his child in Dutch law and in so doing hoped to override the dying wishes of the child's Dutch mother that her daughter continue to live with her family in the Netherlands. He wished to become her guardian and have her live with him. He did so notwithstanding that

"he had never had the care of S, had not previously indicated that he actually wished to care for her and, in addition, had not substantiated his claim that he would be able to discharge his duty of care in a responsible manner" (para 25).

It was hardly surprising that the respect to be paid to the largely formal 'family life' under Article 8 which he had established was overridden by the child's established and very real family life with her mother's kin.

Since Yousef the court has reiterated the Johansen approach. Gurgulu v Germany [2004] 1 FLR 894 bears comparison. A father discovered about the birth of his child 3 months after the event and after the child had been placed with prospective adopters at only 4 days old. He sought to care for her himself. He failed before the German courts on the basis of the child's established relationship with the prospective adopters which it would not be in the child's best interests to break. He established a violation of Article 8 before the Strasbourg court on the basis that the domestic courts had not sufficiently explored all possible solutions to the problem. At paragraph 43 the Johansen test was repeated in terms:

"Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents."

It is suggested that this remains the proper approach required by the Convention. It is materially, and none too subtly, different from section 1 of the Children Act 1989. It ought to produce different results in some cases.