Topic: The growing limitation of parental rights and the increasing reliance on the

paramountcy of the welfare principle is not in the best interests of children. Discuss.

Parental responsibility is described as "all rights, obligations, powers, responsibilities and

 Duty to maintain;
 Duty to discipline;
 Duty to educate;
 Duty to protect;
 Choice of child’s surname;
 Determining child’s religious upbringing;
 Consenting to child’s adoption;
 Consenting to child’s medical treatment;
 Appointment of guardian for child, if necessary

The focus on parents having a responsibility to nurture their children to be morally,

physically, and emotionally healthy is taken from the 1989 UK Children Act2. Conversely,

the welfare principle is set out in Children Act 1989 which states that a child's welfare is the

paramount consideration when the courts are making a decision about a child's upbringing. It

is also referred to as the 'paramountcy principle'. The Court’s interpretation of the word

'paramount' is based on the decision of the House of Lords in J v C3, which explored the

meaning of the phrases ‘first’ and ‘paramount’ in the Guardianship of Infants Act 19254.

According to Lord McDermott, the children's wellbeing is the only factor to be taken into

1
“Children - Legal Affairs”
<https://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/46.01.pdf> accessed
March 14, 2023
2
Participation E, “Children Act 1989” (Legislation.gov.ukNovember 16, 1989)
<https://www.legislation.gov.uk/ukpga/1989/41/section/2> accessed March 14, 2023
3
“J V C (An Infant), [1969] 1 All ER 788: United Kingdom House of Lords, Judgment, Law,
Casemine.com” (https://www.casemine.com)
<https://www.casemine.com/judgement/uk/5a8ff8ca60d03e7f57ecd792> accessed March 14,
2023
4
“Guardianship of Infants Act 1925” (vLex) <https://vlex.co.uk/vid/guardianship-of-infants-
act-808132173> accessed March 14, 2023
account. The case of J v C5 was particularly significant since the House of Lords explicitly

said that children's interests come above those of perfect parents. Historically, the father's

rights to a child born in wedlock were traditionally recognized by the law as having exclusive

rights. This was seen in R v de Mannesville and R v Greenhill, where the Court maintain that

fathers had exclusive parental rights to their offspring. Evidently, this position has since

evolved to reflect that parental duty is shared, including children born out of wedlock. Yet, as

the 19th and early 20th centuries progressed, the rights of the child began to take precedence

over the rights of the parents; as a result, the court's willingness to exercise its jurisdiction to

interfere in parent-child relationships increased. The purpose of the increased intervention

was to better safeguard children, and as time went on, people began to hold the belief that the

wellbeing of the kid came above all other considerations. . Thus, for law, this means that the

court will, in circumstances, override the wishes of both parent and child where it can be

found to be in the best interest of such child.

As was already indicated, the current legal stance regarding the parent-child relationship is

one of shared responsibility, and this is emphasized in Section 4 of the Trinidadian Family

Law Act6 (TTFLA). Many instances, such Durity v. Benjamin, where the equality of parental

rights outside of marriage was emphasized, have represented this position. An additional

issue of importance and relevance which emerged from this case was how the judge

perceived and applied the welfare of the child, most known as the "Welfare Principle". It was

5
“J V C (An Infant), [1969] 1 All ER 788: United Kingdom House of Lords, Judgment,
Law, Casemine.com” (https://www.casemine.com)
<https://www.casemine.com/judgement/uk/5a8ff8ca60d03e7f57ecd792> accessed
March 14, 2023

6
“Family Law (Guardianship of Minors, Domicile and Maintenance)”
<https://agla.gov.tt/downloads/laws/46.08.pdf> accessed March 14, 2023
stated by the Judge that: “It seems to me and I so hold that there is equality of parental rights

as there are no illegitimate children once paternity is established . . . It is the welfare of the

child that I must consider and not what the parents want.”

The TTFLA's Section 3 puts into practice the principle that the court's top priority is the

child's welfare. According to the clause, the court must place the minor's welfare first and

foremost while making decisions about any actions involving the custody, upbringing, or

administration of any property owned by the minor. They won't take into account, among

other things, whether the mother's or the father's claim is more valid. Thus, while the parent

obviously has responsibilities for their child in regards to maintenance, education, religious

upbringing, discipline and medical treatment, this section subsequently reflects that there are

indeed legal limits to the exercise of parental authority as regardless of what parent(s) would

wish for the child. It is up to the discretion of the Court to determine if it is indeed in the best

interest of the child – if it is not they will override the parental rights. For instance, if a

parent’s religious obligations may involve a risk of harm to the child, the Court may grant an

order of prohibition. This was illustrated in the cases of Hoffman v Austria, Re R (A minor),

Re O (A minor). 7 Thus, it is evident that the court can and may ultimately refuse to authorize

whatever is requested if it is deemed to be contrary to the welfare and best interest of the

child. Similarly, in the case of Re B(A Minor), 8 the Court held that it was in the best interest

of the 12 year old child to terminate her pregnancy instead of fulfilling her mother’s wishes

of continuing with it as the continuation of the pregnancy involved greater risks to the child’s

mental and physical health versus having an abortion.

7
“Hoffman v Austria” (vLex) <https://vlex.co.uk/vid/hoffman-v-austria-849726256>
accessed March 14, 2023

8
(Wardship: Sterilisation) [1988] AC 199
Furthermore, the intervention of the Court is also observed in the case of Gillick v West

Norfolk9. Gillick was a significant ruling which highlighted a plethora of challenging legal

problems. The House of Lords was asked to decide, first and foremost, the scope of parental

control over a minor child and whether or not a minor might consent to medical treatment or

obtain contraceptive counsel against the wishes or knowledge of their parents. Arising out of

this case was the Gillick competence principle which states that it can be applied when a

young person wishes to decline or proceed with medical care. However, a young person's

decision may be overturned if they reject a course of action that could result in their death or

very serious long-term harm to themselves. Therefore, Lord Scarman held that a minor will

be held ‘Gillick Competent’ if they have a “sufficient understanding and intelligence to

enable him or her to understand what is proposed” and have a “sufficient maturity” to

understand “moral and family questions...long-term problems associated with the emotional

impact of pregnancy”. Lord Fraser took a different approach and held a minor would be

‘Gillick competent’ if they could satisfy five criteria which revolve around whether it is in the

child’s “best interests” to obtain the proposed treatment. In the case of Re E, a 15-year-old

boy refused to consent to the blood transfusion on the basis of being a Jehovah’s witness. The

Court authorised the blood transfusion and held the child should not be allowed to be a

“martyr” before the court. Thus, one of the strengths arising from Gillick and the Court’s

intervention is that subsequent interpretation of the test has allowed the court to retain a

protective mechanism to preserving the lives of children and allow the court to veto a

competent child’s refusal of treatment “that would do him or her irreparable harm” based on

religious refusals stemming from the wishes of the parent.

Additionally, in the case of R v Griffin, the father severely beat his 2-year-old child while

claiming that because he had parental responsibility, it was his obligation to assure the child's

care. He justified his actions by saying that it was both his right and his prerogative. The
9
Gillick v West Norfolk and Wisbech Area Health Authority and Another 1985 (SUPRA)
court determined that a child under the age of two and a half was unable to understand

correction; if the child dies as a result, the father is responsible for manslaughter; and more

severe punishment than is necessary is not appropriate. Similarly in, A v United Kingdom, A,

an 8-year-old child, guilty of behaving badly, had several canings from his stepfather S. S

was found not guilty of assault resulting in actual bodily damage, but the European Court of

Human Rights ruled that A's right not to be subjected to inhuman or degrading treatment was

infringed because the caning reached the required level of severity. Both cases, one again,

explicate the Court indubitably acting in the best interest of the child by superseding any

potential harm which may be inflicted by a parent under the guise of executing their parental

rights.

In conclusion, the statement, “The growing limitation of parental rights and the increasing

reliance on the paramountcy of the welfare principle is not in the best interests of children” is

erroneous in its expression. From the plethora of cases provided in this essay, it is

unmistakable that the Court has acted in what is the best interests of children with its

continuous reliance on the paramountcy of the welfare principle.