Welfare of the child
102. Section 1(1) of the Children Act 1989 provides
that when a court determines any question relating to the upbringing
of a child or the administration of a child's property, "the
child's welfare shall be the court's paramount consideration".
This same "paramountcy principle" will apply in the
ordering of contact activities.
But when a court considers making an enforcement order under the
draft Bill, new section 11G(9) provides that it must "take
into account the welfare of the child".
This difference was commented on by a number of witnesses. Academics
from the Centre for Research on the Child and Family at the University
of East Anglia argued:
"It seems inappropriate
that the lowest
welfare test is to be applied in the most difficult cases where
the court's intervention is at its most drastic and the potential
gains for the child may be at their most marginal. In these cases
the court has to balance the possible gains to the child from
enforcing an order, with possible losses in terms of increased
parental hostility and a negative impact on parental functioning.
The use of the lower welfare test in the most difficult cases
risks giving the impression that the court is more concerned with
imposing its will rather than securing the best outcomes for the
103. The NSPCC and NYAS were also critical of
the non-application of the paramountcy principle.
They argued that as a result the prime focus of the draft Bill
changed from protecting the child to asserting the rights of adults.
104. The legal witnesses to our inquiry tended
to support the current wording of the draft Bill. Mrs Justice
"Once an order has been made, then the court
has a public interest in seeing that that order is enforced. Obviously,
you do take into account the welfare of the child, but not to
be paramount, and there are many occasions, many other applications
in which welfare is not the paramount consideration, so I personally
do not have a problem with that."
105. Families Need Fathers argued that reference
to the welfare of children could be deleted from the draft Bill
altogether, on the grounds that the welfare of the child had "already
been settled" in the making of the contact order. It proposed
that the requirement to take the child's welfare into account
should be replaced with a requirement to apply the minimum sanction
necessary to ensure compliance with an enforcement order.
106. The Minister for Children told us that,
in making an enforcement order, the court would be:
looking at the culpability of the parent
in relation to a flagrant failure to abide by the contact order.
The contact order is the thing that has the paramountcy of the
107. In paragraph 94 we recommend that clearer
connections should be made between the enforcement powers proposed
in this draft Bill, and courts' existing powers under the Contempt
of Court Act 1981. It is well established, though there is no
express provision in the 1981 Act, that a family court must carefully
weigh in the balance the interests of the child concerned when
considering whether to fine or imprison a parent who is in breach
of a contact order. It would seem logical for family courts to
perform the same balancing act when considering enforcement action
under the powers proposed in the draft Bill. The wording of new
section 11G(9) has been criticised by some of our witnesses, and
was the subject of considerable discussion within this Committee.
It does not seem to have had the desired effect of providing clarity.
We conclude that the Government should consider removing new
section 11G(9) from the Bill altogether. It would be consistent
with this conclusion for proposed new section 11I(9) also to be
deleted from the Bill.
63 Making Contact Work,
para 14.48; Parental Separation: Children's Needs and Parent's
Responsibilities, pp 36-7