1. INTRODUCTION: WELFARE, INTERESTS AND RIGHTS

Decisions concerning children’s residence and contact have consequences for the whole family, not merely the child in question. Some of these consequences can be profound: orders concerning children may effectively prevent parents from returning to their home country, restrict their ability to form meaningful relationships with their children, or even require victims of abuse to maintain contact with perpetrators of that abuse. Whether these consequences should be taken into account in making orders and, if so, how the interests of parents should be balanced against those of children, has been the subject of longstanding academic debate. Despite that debate, the law has remained remarkably consistent. Judicial decisions concerning children’s upbringing must be made in accordance with the welfare principle, which requires that the child’s welfare must be the court’s paramount consideration. The orthodox interpretation of this direction is that the welfare of the child will determine the outcome of the court’s decision, leaving no room for independent consideration of the interests of other family members.

Despite continued judicial support for the welfare principle, the academic response has been rather more critical. These criticisms have tended to cluster around two primary objections, which Eekelaar terms the ‘[lack of] transparency objection’ and the ‘fairness objection’. The transparency objection stems from the difficulty in giving any objective and precise meaning to the term ‘welfare’, given that views on what is ‘best’ for a child will vary between individuals, and across time and cultures. This problem is exacerbated by the need for flexibility to ensure that the principle remains responsive to social change, and to the wide variety of circumstances in which it applies. 5 In consequence, the argument is often made that the principle is vague and indeterminate. This leads to the concern that an assessment of ‘welfare’ may obscure the fact that the decision has actually been driven by unarticulated concerns to protect the rights of others, or by untested assumptions as to what is best for children. The fairness objection is concerned with the fact that the orthodox interpretation of the welfare principle prevents proper consideration of the interests of participants other than the child concerned.