The welfare principle and the children act: presumably it's about welfare?

Abstract

This article considers the use of presumptions by courts when interpreting the welfare principle in the Children Act 1989. It notes that in recent years the courts have turned away from the use of presumptions and preferred to apply the welfare principle to the facts of the case, free from generalisations. This article is supportive of this move, but explores the reasons why presumptions appeal to some lawyers. While the courts have generally, quite properly, rejected these arguments, one has not been considered sufficiently. That is that presumptions are used to indicate that the law believes that a particular matter constitutes an intrinsic good for children. While this argument is not supported by the author, it may better explain the support for presumptions, than the arguments commonly relied upon.

Keywords::

• welfare
• best interests
• contact
• residence
• natural parent
• intrinsic good