Taking the Rights of Parents and Children Seriously: Confronting the Welfare Principle under the Human Rights Act

Abstract

This article argues that resistance to the Human Rights Act has built up in the context of disputes relating to children and that such resistance is founded in the attachment of the courts to the welfare or paramountcy principle as currently conceived—the principle that the child’s welfare automatically prevails over the rights of other family members. It argues that the failure to take account of Convention arguments could only be a legitimate stance if there was no conflict between the demands of the welfare principle and those of the Convention guarantees, but that in fact the approach of the European Court of Human Rights differs considerably from that of the UK courts since it seeks to balance the rights of different family members. The article goes on to argue that, taking account of the Strasbourg stance and of the already established domestic recognition of the presumptive equality of competing qualified Convention rights, it is time to accept the adoption of a new model of judicial reasoning in the context of disputes over children—the ‘parallel analysis’ or ‘ultimate balancing act’.