The Conflict between the Welfare Principle and Article 8

Since the enactment of the Human Rights Act 1998 (HRA) a resistance is marked by the English judges in relation to disputes involving children. English courts have a difficult task in balancing the interests of parents and children since the welfare principle only looks at the interests of the child. Contrary article 8 of the European Convention on Human Rights (ECHR) gives precedence to the rights of parents. Consequently are these two principles in conflict? Before answering this question, it is better to take things from the beginning.
When a court is dealing with proceedings relating to a child, section 1 of the Children Act 1989 (CA 1989) governs that the court’s paramount consideration shall lie with the child’s welfare. The term paramount was explained by Lord Macdermott in J v C which means ‘that the child’s welfare is to be treated as the top item in a list of items relevant to the matter of question’. His Lordship went on to explain that when all the relevant facts and circumstances are taken into account and weighed, the outcome chosen by the court is based on the interests of the relevant child. Therefore any other party’s interest is only considered as far as it contributes to promote the child’s best interest.
Herring characterises the present law of the welfare principle is individualistic . A ceaseless debate has begun between several writers about the potential conflict between the welfare principle and the ECHR. Article 8 provides that there should be respect for everybody’s right to private and family life. This right is subject to certain restrictions as specified in article 8(2). The European Court on Human Rights (ECtHR) has been referred children’s rights. In Johansen v Norway it considere...

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...tion and the welfare principle: a thesis of conflict resolution' [2014] Fam.Law, 44(Mar), 331-334
• Herring J., ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ [1999] C.F.L.Q.11 (3), 223-235
• Ifezue G. Rajabali M., ‘Protecting the interests of the child’ [2013] Cambridge Journal of International and Comparative Law 1: 77–85
• Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
• Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201

Books
• Choudhry S., Herring J. ‘European Human Rights and Family Law’ (Hart Publishing, 2010)
• Gilmore S., Glennon L., ‘Hayes and Williams’Family Law’ (3rd edition, Oxford 2012)
Websites
• assessed in 29th April 2014