Paramountcy Principle Analysis

Paramountcy Principle AnalysisIntroductionSection 1(1) of the Children be 1989 (CA) contains what is comm however referred to as the rifecy or best interests obligate of faith. The section providesWhen a administration de preconditionines any question with compliance to(a) the upbringing of a nestling or(b) the administration of a pincers property or the natural covering of any income arising from it,the shavers public assistance shall be the courts prevailing considerateness.The prevailingcy normal has been a feature of English truth for a very long time (Alston Gilmour-Walsh 1996, p3) and from time to time, has been subjected to critical examen (Reece 1996, p 267 Fineman 1988, p727). This essay investigates the end to which the operation of agnate accountability and the application of the paramountcy dogma affair in private law disputes concerning pincerren. Firstly, I before long analyse the implications of the paramountcy belief and then I examine the caus e of conflict mingled with the application of the paramountcy principle and p bental indebtedness. In the penultimate section, I proffer an analysis for mitigating the conflict. I make my final observations in the conclusion.Implications of the wel furthere principleThe welf are 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 grows or other parties must be subordinated to those of the child. As gentle McDermott explained, the offbeat principle, connotes a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other pile are taken into account and weighed, the course to be followed will be that which is most in the interests of the childs 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 concern ed with the interests of the mother and the receive 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 heldIt isworth statingsome very familiar alone none the slight fundamental principlesoverriding all elsethe welfare of the child is the paramount consideration it cannot be lowline 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.Thus, the laws comment of the paramountcy principle is individualistic. Hence, the welfare of the child is viewed without consideration for the welfare or interests of the rest of his or her family, friends and community.Parental business and the paramountcy principleRe K D (Minor) (Ward Termination of Access) (1988 2 WLR 398) ) provides a good example of how the individualistic conception of the welfare principle whole works in actu al practice. In that case, Lord Oliver specifically considered the mothers appeal that the right to access was a parental right defend by article 8 of the European expression for the Protection of pitying Rights and Fundamental Freedoms 1950 (ECHR) and that to terminate access with her child would result in a breach of her article 8 rights. In deciding the matter, Lord Oliver held bloodline conferson parents the exclusive liberty of orderingthe upbringing of children of tender age That is a privilege which is circumscribed by many limitations When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration the welfare of the child.The idea of parental responsibility is concomitant with parental rights. Consequently, it has been suggested that the paramountcy principle does not sit well with the idea of parental rights/responsibility because t he former is structured along welfarist principles whilst the latter is rights-based. In particular, it has been suggested that the principle goes against article 8 of the European ruler on Human Rights (ECHR) which provides a sufficient right to respect for private and family life, the home and correspondence. By encapsulating the rights of both parents and children to private and family life, article 8 appears on its face to come into pardon conflict with the CA, which renders the childs interests paramount. This criticism has become particularly compel since the implementation of the Human Rights work out 1998 (HRA) which domesticated radiation diagram rights in the UK (Herring 1999b).However, it is doable (and indeed necessary) to expound an analytical framework which allows the recognition of both principles as being important for the survival and development of the child.Reconciling parental responsibility with the paramountcy principle-a rights-based analysisThere is a strong consensus among family law practitioners that section 1(1) of the CA, as it is currently interpreted, reflects a predominantly functional or welfarist approach. Stephen Parker in his seminal piece on family law and legal theory has analysed the ordure of family law from a rights-based to a welfare-based approach (Parker 1992, p 311). In this regard, it is emphasised that before the HRA was enacted the rights-based model of family law had, been rejected due to the increasing empowerment of the child-centred approach advocated by the paramountcy principle in section 1(1) of the CA.However, the CA, since it identifies the welfare of the child as the sole and decisive consideration, does not correspond to classic utilitarianism it does not seek to arrive at an outcome which, overall, achieves the best result for the family members or others, merely only for the child. In other words, it only requires that the childs welfare should be paramount, rather than by direct reference to the principle of utility whereby actions that maximise the greatest welfare of the greatest number are preferentially singled out (Herring 1999b pp223-35). The paramountcy principle is not strictly welfarist principle as has been argued by many.At the same time it may be pointed out that the ECHRs approach cannot be said to be fully rights-based. Although the Convention is clearly a classically or rights-based document since it assumes that definite rights and interests are intrinsically valuable and should prima facie be protected, its adherence to a strictly rights approach may be viewed as down the stairsmined in respect of the materially qualified articles such as articles 8-11. These articles proffer a qualified rights-based approach, since the qualifications of their second paragraphs allow the rights to be compromised by sufficiently weighty consideration (Mullender 2000, pp 493-516). Thus, although the Conventions theoretical underpinnings differ significantly from t hose of the CA, the differences in their approaches and determine may be less irreconcilable than some theorists have cared to acknowledge.However, demonstrating that the approaches between the paramountcy principle and the ECHR are not all that much at odds does not resolve the issue. This is because as it is currently conceived and applied, the paramountcy principle is incompatible with the demands of article 8 of the Convention. There is, therefore, a ask for a reinterpretation of the principle under section 3(1) of the HRA in accordance with the interpretative obligation under that section, and of the deficiency for taking account of the relevant Strasbourg jurisprudence under section 2.The term paramount in section 1(1) of the CA needs to be redefined, but such redefinition need not be radical because the word paramount also suggests the notion of pre-eminency, rather than the meaning the courts have so far given it under the CA, whereby it has in reality meant sole. Howeve r, given the sphere for ambiguity that the courts capacity discover in the term pre-eminent, the term primacy might be more in line with the ECHRs provisions as well as the jurisprudence of the Strasbourg institutions. The adoption of that term could be viewed as a realistic interpretation of the term paramount and would obviate the need for a declaration of incompatibility under section 4 of the HRA.This rendering of the paramountcy principle is also in line with article 3 of the Convention on the Rights of the Child which requires that in all actions concerning children, their best interests must be a primary consideration. The use of the article a in the Convention suggests that the welfare or best interests of the child are to be considered, but that a number of other factors can also be considered (Alston 1994b). Clearly, these factors admit the recognition of parental responsibility.Concluding remarksIt is clear from the foregoing that despite its utilitarian foundations, the paramountcy principle can exist side by side with the rights-based approaches demand by the application of parental responsibility. A persuasive case may indeed be made for the removal of the primacy principle. However, given the entrenchment of the principle in English law, it is not only desirable but possible to re-interpret the principle in a manner that comport well with the rights-based framework. The extent of dissonance between the two frameworks depends on the extent to which judges and practitioners are willing to accommodate a rights-based approach in dealing with matters that pick out the two principles.BibliographyInternational ConventionsConvention on the Rights of the ChildEuropean Convention for the Protection of Human Rights and Fundamental Freedoms 1950StatutesChildren Act 1989Human Rights Act 1998CasesRe KD (A Minor) (Wardship Termination of Access) 1970 AC 668Re P (Contact Supervision) 1996 2 FLR 314Re O (Contact Imposition of Conditions)Books and articlesA lston, P (ed), The best interests of the child Reconciling culture and mankind rights, Oxford Oxford University Press, 1994a.Alston, P The best interests principle Towards a reconciliation of culture and benevolent rights in Alston, P (ed), The best interests of the child Reconciling culture and humans rights, Oxford Oxford University Press, 1994b.Alston, P Gilmour-Walsh, B The best interests of the child Towards a synthesis rights and pagan values, Florence Innocenti Studies, 1996.Choudhry, S Fenwick, H Taking the rights of parents and children seriously Confronting the welfare principle under the Human Rights Act 2005 Oxford Journal of Legal Studies 453.Eekelaar, J Beyond the welfare principle 2002 Child and Family rectitude Quarterly 237.Fineman, M Dominant discourse, superior language and legal change in child custody decision-making (1988) one hundred one Harvard LR 727.Fortin, J The HRAs impact on litigation involving children and their families (1999) CFLQ 237.Herrin g, J The Human Rights Act and the welfare principle in family law Conflicting or complemental? (1999a) CFLQ 223.Herring, J The welfare principle and parents rights, in A. Bainham, et al (eds) What is a parent? A socio-legal analysis London Hart Publishing, 1999b.Mullender, R Theorising the third elan Qualified consequentialism, the proportionality principle and the new social democracy (2000) 27(4) J. Law and Society 493.Parker, S Rights and utility in Anglo-Australian family law (1992) 55 MLR 311. train Bueren, G The international law on the rights of the child Dordrecht Martinus Nijhoff Publishers, 1995.