It is hard not to describe Munby
LJ's judgment in Re G (Children)[2012] EWCA Civ 1233 (4 October 2012) as extraordinary. The facts of the case,
while interesting and important, are not my focus here. They had to do with the
religious upbringing and education of five children of an ultra orthodox Jewish
family, but in determining those issues the Court of Appeal grappled with
fundamental questions about the welfare principle. This post looks at that
discussion.
Understanding Welfare
Munby LJ starts his broad
discussion of welfare by noting that the word can be considered synonymous with
'well-being' and 'interests', as per the House of Lords decision in Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199. From the start, the Judge's
comments indicate the immense scope of his understanding of welfare, since he
says that the concept "extends to and embraces everything that relates to
the child's development as a human being and to the child's present and future
life as a human being" (para 26).
In case the
enormity of that task were not clear, Munby LJ emphasises that "with
modern life expectancy a judge dealing with a young child today may be looking
to the 22nd century" (para 26). One has to feel some sympathy for the
District Judge trying to get through 20 cases a day, finding that she may now
have to consider the implications of each case over the next century,
depending, as always, "upon the context and the nature of the issue"
(para 26).
The Judge then
expands upon the range of considerations relevant to the welfare evaluation:
"Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach." (para 27)
In other words,
there is really no aspect of the child's life and circumstances which might not
be relevant to the enquiry. This much we knew, but having the full range of
those issues set out in this way is unusual and helpful (if rather daunting).
With reference to a recent academic article by my colleagues Jonathan Herring
and Charles Foster,* Munby LJ explains that his reference to 'happiness' should
be understood in an Aristotelian sense of 'the good life'. The Judge rather
ducks the question of what that might mean - "There is no need to pursue
here that age-old question" (para 29) - but is clear that he does not mean
"hedonism".
Societies, Communities, Families
The next point is
that children live in societies, communities and families, and that a child's
welfare cannot be considered in isolation. With passing reference to John
Donne, Blackstone and Aristotle (as well as Herring and Foster's article
again), Munby LJ remarks:
"relationships are central to our sense and understanding of ourselves. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others. It is only by considering the child's network of relationships that their well-being can be properly considered. So a child's relationships, both within and without the family, are always relevant to the child's interests; often they will be determinative" (para 30).
This
discussion is important. It fits with Herring's earlier work about relational
welfare,** as well as with my recent writings about the importance of seeing the
welfare principle as including consideration of the interests of everyone
involved in the child's life. With a focus on questions about human rights, I
say that "Issues like parents' rights are not irrelevant or excluded under
the welfare principle; quite the contrary, they may be a very important part of
the process of deciding which course is best for the child".*** Munby LJ
is quite right to put this point at its broadest, focusing on relationships,
community, and the values of a pluralistic liberal society (including human
rights).
Applying the
Welfare Principle
Looking back to
the famous House of Lords decision in J v C [1970] AC 668, Munby LJ
quotes a section from Lord Upjohn's speech where he said that the judicial task
is to behave as the reasonable parent, and that the views of the reasonable
parent will change over time as society's values change. Munby LJ sees this as
crucial, and draws a distinction between the concept of welfare - doing
what is best for the child - and the conceptions or content of
welfare - what we mean by "doing what is best for the child" in a
given factual and temporal context (para 33). The former remains static,
whereas the latter will change and develop:
"A child's welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes." (para 33)
That approach, of
course, begs the question of what the standards of reasonable men and women in
2012 might be. Lord Justice Munby does not shy from engaging with this
question, and he identifies three key aspects: (1) equality of opportunity, (2)
aspiration, and (3) bringing the child to adulthood equipped to decide what
kind of life to lead and to pursue their aspirations. The quotation is long,
but worth reading in full:
"At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a 'judicial reasonable parent' and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable. In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead –what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future." (paras 79 and 80).
This
is a judgment of extraordinary vision, grappling with important questions and
offering insightful answers. No doubt there will be much said about this
decision in the months and years to come, but my initial thought is that Munby
LJ may have just set the standard against which we will judge explanations of
the welfare principle, both in its theoretical meaning and its practical
application, for some time to come.
Notes
* J Herring and C
Foster, "Welfare Means Rationality, Virtue and Altruism" (2012) 32 Legal
Studies 480
** See, eg, J
Herring, "Farewell Welfare?" [2005] Journal of Social Welfare and
Family Law 159; J Herring, "Relational Autonomy and Family Law"
in J Wallbank et al (eds) Rights, Welfare and Family Law (Routledge,
2009).
*** R George, Ideas
and Debates in Family Law (Hart, 2012), p 118.
