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8 - Children in court – their welfare, wishes and feelings

Published online by Cambridge University Press:  05 June 2012

Jane Fortin
Jane Fortin
Affiliation:
University of Sussex
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Summary

Introduction

Section 1 of the Children Act (CA) 1989 requires the courts to reach decisions over children's upbringing, by giving the children's welfare their paramount consideration – a provision often described as the ‘paramountcy principle’. But when deciding what is in the child's welfare or best interests, the courts are directed to consider ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’. This direction accommodates the fact that children may have a better grasp of their own needs than adults. Indeed, it promotes a diluted form of the notion of autonomy by implying that a mature child's best interests may be fulfilled most effectively by the court acceding to his or her own wishes. Furthermore, its inclusion in the welfare checklist reflects a conviction that ‘the increasing recognition given both in practice and in law to the child's status as a human being in his own right’ should also be matched by the courts, when hearing disputes over children. Whether the direction is realistic depends on children having an effective means of conveying their views to the court – not all are provided with such a facility. Despite its importance, demonstrated by its foremost position in the ‘welfare checklist’, the courts are expected to achieve a result which most accords with adult notions of children's best interests, whether or not it accords with their wishes.

Type
Chapter
Information
Children's Rights and the Developing Law , pp. 291 - 318
Publisher: Cambridge University Press
Print publication year: 2009

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