Chapter 6: The child’s welfare in a European perspective
Family law in domestic legal systems across Europe gives special prominence to the welfare or best interests of children in disputes concerning their upbringing. These domestic provisions receive support from the United Nations Convention on the Rights of the Child 1989, which provides that, in all actions concerning children, ‘the best interests of the child shall be a primary consideration’. The same language has, more recently, been used in the Charter of Fundamental Rights of the European Union. While domestic provisions often use slightly different language from these international documents, the idea that the child’s welfare amounts to a special consideration in decisions regarding their upbringing is widespread. However, despite the dominance of this welfare approach across Europe, there is a long-standing question about whether an approach to child law focused on the child’s welfare is compatible with the requirements of the European Convention on Human Rights (ECHR) as interpreted by the European Court of Human Rights (ECtHR). The details will vary from jurisdiction to jurisdiction, but the widespread use of the welfare approach means that the core of the discussion is relevant across Europe. However, the question has been particularly well discussed by academics and judges in England, and so this chapter focuses on this debate as seen in the English context.