Putting a child first: the paramountcy of best interests and parental rights

David Archard

Professor David Archard, RCPCH Conference 2018 keynote speaker, shares his thoughts on this topical issue.

What does it mean to put a child first? And where does that leave the views of parents as to what should happen to their child? And how should we deal with conflicts between those views and the views of doctors and nurses?

Recent, much publicised cases have dramatised these questions in a way that all involved would probably prefer had not happened. Yet it is important, more so than ever, to understand these questions and to be able dispassionately to answer them.

Here is some background. In the 1970s and 1980s there were much quoted articles in the law journals on the ‘disappearance’ and the ‘fragmentation’ of parental rights. These pieces reflected on the legal changes that had taken place since the Victorian era when the home was an adult’s castle and its inhabitants under his control.

Indeed a father had rights over his own child that were more or less equivalent to those of a property owner. Those rights were progressively eroded at the same time as there was a growing recognition that the child had his/her own status, claims and indeed rights.

In 1989, the ‘Children Act’ had as its very first clause, and core principle, that the welfare of the child should be the paramount consideration of the court when dealing with the upbringing of a child. That Act nowhere speaks of the rights of parents; instead it speaks of parental ‘responsibilities’.

In the same year, 1989, the ‘United Convention on the Rights of the Child’, was signed by all but two states eligible to be signatories, including the UK. Article 3 specifies that "in all actions concerning children …..the best interests of the child shall be a primary consideration". Article 12 assures to every child "who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child".

1989 looks like the year in which children were categorically put first and parents were to all intents and purposes put nowhere. Yet things cannot be that simple.

In the first place, the Children Act and the UN Convention use two different ‘p’ words. The Act speaks of the child’s welfare as ‘paramount’, whereas the Convention says that the interests of a child should be ‘a primary’ consideration. Something is paramount if it is the most important thing; something is a primary consideration if it is very important but is nevertheless not the only thing that matters.

Clearly a child’s welfare, or interests, cannot be the sole consideration when determining how things should go for a child. Others have interests that need to be taken into account. These include most obviously but not only the parents. There are also, for instance, the broader interests of society at large, the public interest.

Yet what does it mean to take into account the views of a parent as to what should happen to a child?

There are fascinating questions – ones now much discussed by moral and political philosophers – about parenthood. These include questions about whether everyone is entitled to be a parent and how anyone gets to be the parent of any particular child. Yet in the present context the important question is: What exactly does it mean to be a child’s parents; what rights, if any, do parents have over a child in their care.

I have seen placards at some high-profile demonstrations saying: "My child, my choice" which has a subtitle of "Protect parental rights". So are parental rights simply a matter of choosing as one wishes for one’s own child. Noone now thinks that any parental choice for a child is permissible. No parent has the right to make decisions that significantly jeopardise the health and interests of a child. No parent is free to abuse, neglect or seriously harm her offspring.

Now there are interesting discussions of what precisely the limits are to a parent’s freedom to choose for her child: is it a freedom up to but not beyond significant harm; or one only to provide reasonable care; or to meet basic needs. But what is not often sufficiently discussed is why one might think that what the United States Courts thinks of as ‘the fundamental liberty’ of parents to direct the upbringing of their children is a liberty as fundamental as that of adults to lead the lives they choose.

Why exactly is it my choice because it is my child? It cannot be that the child is nothing but an extension of my own self. Nor any longer can it be held that a parent owns a child. My child is not mine in the same way that my house or my car is mine. Is it thought that a parent knows best – or at least better than anyone else - what is best for her child? And why exactly should we think that? An entirely separate claim is that a child’s interests are irretrievably bound up with those of her parents. This means that how a parent chooses to lead her life makes all the difference to how a child’s life goes. This may well be true. It does not show that a parent’s choices should simply and for that reason always be respected.

I will in my address look at the different accounts that might be offered of parental claims over their children and I will try to disentangle the confused and often confusing accounts that are given. Parental rights may not have disappeared. At the same time, simple assertions that I can choose for my child – while understandable and with some obvious appeal – need properly to be understood and evaluated.

You can listen to Professor David Archard at this year's RCPCH Conference.