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The Welfare Test: Determining the Indeterminate

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/elr.2018.0457
Published date01 January 2018
Pages94-100
Author
Date01 January 2018
INTRODUCTION

Many parting or never-together parents reach agreement on the future arrangements for the care of their child, sometimes with the help of a third party, e.g. a mediator. When they cannot agree, disputes may be particularly acrimonious and intractable, with NJDB v JEG 1 providing a graphic illustration of disputes of this kind at their worst. How the law frames the criteria for decision-making in disputed cases is important, not only for those who litigate, but also by providing context for those “bargaining in the shadow of the law”.2

In reaching decisions about parental responsibilities and parental rights, the Scottish courts are directed, in terms of the Children (Scotland) Act 1995 (the “1995 Act”), to accord paramountcy to the welfare of the child concerned; to respect the child's participation rights; and to refrain from making any non-beneficial order.3 In this, the law complies with and sometimes exceeds the requirements of the United Nations Convention on the Rights of the Child (“CRC”).4 Taking account of any views the child wishes to express is a critical part of the process and is discussed elsewhere.5 This note focusses on the welfare test used by the courts to prioritise the child's welfare, arguing for clarification of the test by devising a welfare checklist. In passing, it offers an explanation of the apparent reluctance to do so.

The welfare test has something of a Janus-like quality, combining the virtue of flexibility with the vice of vagueness.6 Its flexibility enables courts to make individualised assessments of what will best serve a particular child, bearing in mind that children live in infinitely varied situations. Flexibility, however, is not cost-free and its price is uncertainty. Often known as “the best interests test” in other jurisdictions and internationally, the welfare test has received its share of criticism over the years, with Robert Mnookin famously describing it as “vague and indeterminate”.7 Many jurisdictions have sought to curtail this indeterminacy – and the judicial discretion that accompanies it – by devising statutory “welfare checklists”, listing the factors that are relevant in assessing welfare. That approach has found support from the United Nations Committee on the Rights of the Child (“UNCRC”) and it has offered extensive guidance on how such lists should be framed and operate.8

 FROM UNADORNED WELFARE TEST TO PARTIAL CHECKLIST

The welfare test, as applied to intra-family disputes, is found in Part I of the 1995 Act. Very much a product of the recommendations of the Scottish Law Commission (“SLC”), the statute directs courts to regard “the welfare of the child concerned as its paramount consideration”.9 The original version of the 1995 Act said nothing further about welfare. That was no accident, since the SLC had rejected a welfare checklist, quite explicitly, on the basis that it would be necessarily incomplete, might divert attention from other factors which ought to be considered and risked judges taking a mechanical approach to decision-making in order to minimise the prospect of a successful appeal.10 Academics produced unofficial welfare checklists,11 based on the factors courts have considered significant, but the statutory welfare test remained unadorned.

In 2006, in response to concern over two specific issues, the impact of domestic abuse on children and the obstruction of contact by the child's resident parent, the 1995 Act was amended. In assessing welfare, courts are now required to have regard “in particular” to the need to protect the...

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