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).

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.