What is Justice in Care Proceedings?

Summary

1. INTRODUCTION

Children proceedings are dominated by welfare, but what role does justice play? We might expect the family justice system, by definition, to be very concerned with just procedures and outcomes. Indeed, this is underscored by the overriding objective set out in the Family Procedure Rules, which is to enable ‘the court to deal with cases justly, having regard to any welfare issues involved’.

This is an interesting juxtaposition of justice and welfare. We should note that, at least in these rules, justice comes first, while welfare is taken into consideration. I begin with some caveats.

First, I do not intend to add to the jurisprudential debate about what justice is. I take the dictionary definition of ‘fairness’ as synonymous with ‘justice’. The question I pose is: how fair or just are public law children proceedings, both procedurally and in terms of outcomes? Second, I recognise that what is just is in the eyes of the beholder, although the same can be said of welfare. Reasonable people can differ on the matters aired here. Third, in focusing exclusively on care proceedings, I do not minimise the importance of pre-proceedings and support for families, which rightly receive such emphasis in the Children Act 1989. These are not, however, the focus of this chapter.

2. JUSTICE AND THE WELFARE PRINCIPLE

We are used to the principle that the welfare of children is the court’s ‘paramount’ consideration. Over half a century ago, Lord MacDermott articulated his famous interpretation of paramountcy : that it excluded all considerations other than the child’s welfare which would ‘rule upon the course to be followed’. The clear implication was that justice to adult parties was not the court’s concern. Its sole concern was with the welfare of the child. However, as we know, the welfare principle, in this full-blooded sense, only applies where the court is determining any question with respect to the child’s upbringing or administration of the child’s property. There are, therefore, many disputes which affect children that are not governed by this principle. Here, there is more obvious scope for considerations of justice to have an impact.