John Bolch says: the welfare of children has always been at the heart of the system

Yesterday I found myself irritated by something that a Government minister said. Whilst there is, of course, nothing unusual in that, this particular irritation was compounded by it being repeated continually in the media.

As everyone will now know, yesterday brought in huge changes to our family justice system, including the new single family court and reforms included in the Children and Families act 2014. The popular media was full of the news, and it was virtually impossible to turn on the TV or radio without hearing about it.

Naturally, the Government could not pass up the opportunity for a self-congratulatory press release, to take all the credit and remind us of what a wonderful job they are doing to reform our justice system (I’m joking, of course). In fact, so keen were they to take credit that the press release was issued not just by the Ministry of Justice but also by the Department for Education, both eager to capture some of the glory.

It was a particular quote within that press release that was the cause of my irritation. It came from Justice Minister Simon Hughes, who said:

“These reforms mark a significant moment for the family justice system, when the proposals made by the Family Justice Review are delivered. But this is not the end of the process I want to continue to work with David Norgrove, so we have a family justice system which has the welfare of children at its heart.”

The implication, of course, is that prior to the reforms we had a family justice system that did not have the welfare of children at its heart.

What utter nonsense.

As any student studying family law will tell you, one of the first things they are taught about is what we know as the ‘paramountcy principle’, presently contained in section 1 of the Children Act 1989:

“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.”

It can hardly be clearer than that – the welfare of the child is the paramount consideration. This principle guides judges, social workers, Cafcass officers, lawyers and all those involved in the family justice system.

Section 1 came into force in 1991, but the principle pre-dates that. It was included, in a similar form, in section 1 of the Guardianship of Minors Act 1971.

So, to suggest that the welfare of children will only be at the heart of the family justice system once the reforms have been completed is, at best, misleading. It is also a slur on those working in the system who have always considered the welfare of children to be paramount.

I am not, of course, saying that nothing has changed since 1971. What was then considered to be best for a child’s welfare might not be considered so nowadays. However, the basic principle is the same, and no new reforms can bring the child’s welfare closer to the heart of the system.

Photo by Holly via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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9 comments

Paul - April 23, 2014 at 9:24pm

Welfare of children always lies at the heart of the system? Are you kidding? Were that true fathers would never have been so consistently marginalised from the lives of their children and nor would any written legislative presumption about parental involvement have become necessary to try and right the misery and wrongs brought about in over twenty years workings of the Children Act. A child’s welfare was often the last thing a court bore in mind. The hierarchy of needs in family law has always been mother first and that is what, up to now, family law has been largely about.

Stitchedup - April 25, 2014 at 6:44pm

Agree

Paul Twyman - April 24, 2014 at 3:49pm

John: I think you are being just a little unfair to the minister. I thought he came across as sincere and well meaning. I do not agree with your view that -“no new reforms can bring the child’s welfare closer to the heart of the system”.
I tend to echo the point made by “Paul – April 23”. I get fed up with hearing practitioners – especially social workers – going on about the importance of the children’s interests being paramount when they seek to justify the vendettas they pursue against parents and other family members. It is the sanctimonious hypocrisy of these people that sticks in my craw. Coupled, of course, with their incompetence (see the reports of Sir Martin Narey, Prof Eileen Monroe, and others).
The recent legislative reforms, taken with Sir James Munby’s excellent initiatives, represent a considerable step forward but there is more to be done. With this in mind I hope you are keeping a “running list” of points for improvement as the months go by, not least because it would be useful for a Parliamentary Committee (Justice or Education) to carry out some post-legislative scrutiny in due course.

Stitchedup - April 25, 2014 at 6:46pm

“The recent legislative reforms, taken with Sir James Munby’s excellent initiatives, represent a considerable step forward but there is more to be done”

Agree, they simply have not gone far enough!!

Paul - April 27, 2014 at 10:29am

More evidence about the nonsense behind the claim made by Mr Bolch lies in the fact of the courts’ propensity to constantly defer issues until the next hearing, thus stretching out cases endlessly. A common feature of family law cases is delay and deferment, a position which ignores a fundamental principle of the Children Act which presumes delay as harmful. Delay and deferment in children cases are endemic. Cases can stretch on for years, in private law fuelled by allegations and where a separated father has to go through hoop after hoop to prove himself as a parent and achieve a modicum of access to his child. In public law, a 26 week rule has now been introduced, thus confirming the point I make. The truth of the matter is that a child’s welfare does not lie at the heart of the system hence the current moves to both reform court procedure as well as change the law itself.

caz - April 25, 2014 at 1:07pm

My Grandson has well reported, medical records of traumatic birth, unusual actions, questionable head growth chart and developement problems and referral to paediatricians child clinic local hospital condition Cerebral Atrophy, something that would not be allowed to be swept under the carpet according to his Court officiated Guardian Ad Litem, but, of course it was, how? by changing his name to a name of a child that had never existed, burying all this evidence, and bringing in to a child court case of vexatious, possiblilities and probabilities in the name of a child who had never existed, ending in the split case being joined together and Full Care Order in the name of a child that has never existed.
The case was then seperated illegally, the childs name changed back to his birth certified name, a bit of court hopping, then LA went on to have him adopted.
My Grandson is now approaching 18yrs, obviously will still have behavioural traits from suffering Cerebral Atrophy, but of course this will be all associated with the terrible injuries he sustained from one/or several family members as stated in the adoption papers????????????

caz - April 25, 2014 at 1:39pm

MIGHT I ALSO ADD
Over the years as a family (mother not included, we decided years ago that she was the only one that could cut off ties from this terrible nightmare of illegality and at least have a life) we gained access back into the court system applying for documents, it was in one of these side courts in front of a judge that had been involved,included 2 solicitors, and the Guardian Ad Litem, on our entry and being sat, the three involved were told to leave, on the guardians passing my chair, I was poked in the back by the guardian ad litem who stated she wanted us to know, that she had nothing to do with the adoption?????????????
Makes everything alright then??????????????????? Alls forgiven, Where was this same person, this should never have been allowed to be covered up, using vexacious accussations to cover-up a hospitals birth neglect and brain damage to a child this way????????????????

Stitchedup - April 25, 2014 at 6:52pm

“I was poked in the back by the guardian ad litem who stated she wanted us to know, that she had nothing to do with the adoption?????????????
Makes everything alright then??????????????????? Alls forgiven”

I have massive sympathy for you and feel a little embarrassed to give you my relatively insignificant story, but I do think it is revealing in a similar manner as yours. The solicitor for my ex practically apologised to me when I was shafted by her, looked me in the eye and said “you do realise I’m just doing my job?”, shook my hand and gave me a sympathetic smile.

Stitchedup - April 25, 2014 at 7:04pm

By the way, this was after she had secured an ex parte non-nol and had me labelled as a violent domestic abuser…. Why would she want to shake my hand???

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