Private children—paramountcy of the child's welfare
Private children—paramountcy of the child's welfare

The following Family practice note provides comprehensive and up to date legal information covering:

  • Private children—paramountcy of the child's welfare
  • The paramountcy principle
  • Meaning of welfare
  • Application of the paramountcy principle
  • When the paramountcy principle does not apply
  • Outside the context of litigation
  • Issues indirectly concerning the child's upbringing or administration of property
  • Publicity
  • Principle excluded by other statutory provisions
  • The presumption of parental involvement

The paramountcy principle

When any court determines any question with respect to:

  1. the upbringing of the child, or

  2. the administration of the child's property or the application of any income arising from it

the child's welfare shall be the court's paramount consideration.

The court has to treat the child's welfare as its paramount consideration, not its 'first and paramount consideration', as was the case under the previous provisions. It was not, however, intended to lead to a change of practice. The paramountcy principle is regarded as reflecting the previous well-established position summarised in a leading case as:

'A process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because of its first importance and the paramount consideration because it rules upon or determines the course to be followed.'

In interpreting the paramountcy principle and in light of HRA 1998, respect must also be given to other persons' rights, eg parents, though where the child's interests conflict with the parents' the child's interests should prevail.

See Practice Note: Conflicting interests and human rights.

For further information, see:

Clarke Hall and Morrison on Children > Division 1 Cardinal Principles

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