Welfare means relationality, virtue and altruism
Published online by Cambridge University Press: 02 January 2018
This paper examines the nature of welfare and best interests as used in medical and family law. It argues that these are commonly presented in individualistic terms, requiring the court to promote the interests of a child or incompetent adult without reference to the interests of others. However, this paper argues that, properly understood, best interests and welfare should be taken as concepts which recognise the importance of relational interests, the performance of obligations, and the virtue of altruism.
- Research Article
- Copyright © Society of Legal Scholars 2012
1. Adoption and Children Act 2002, s 1 similarly provides that when a court or adoption agency is coming to a decision relating to the adoption of a child, ‘[T]he paramount consideration… must be the child's welfare, throughout his life,’ s 1(2). This changed the previous position under the Adoption Act 1976, s 6, by which the child's welfare was the first, but not the paramount, consideration.
2. As has the meaning of best interests in the law governing adults lacking mental capacity, now found in the Mental Capacity Act 2005. For a summary of the current law see Herring, J Medical Law and Ethics (Oxford: Oxford University Press, 3rd edn, 2010) ch 4Google ScholarPubMed. For detailed discussion of the notions of welfare and best interests see eg JM Eekelaar ‘Beyond the welfare principle’ CFLQ 237; J Herring ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ CFLQ 223; Donnelly, M ‘Determining best interests under the Mental Capacity Act 2005’ (2010) 19 Medical Law Review 27 CrossRefGoogle Scholar; J Coggon, ‘Doing what's best: organ donation and intensive care’ in Danbury, C et al (eds) Ethics and Law in Critical Care (Oxford: Oxford University Press, 2010)Google Scholar.
3. Eekelaar, above n 2; Herring, J ‘Caregivers in medical law and ethics’ (2008) 25 Journal of Contemporary Health Law and Policy 1 Google Scholar.
4.  2 FLR 314 at 328.
5. Mental Capacity Act 2005, s 4(7).
6. For a discussion of how the courts have managed to attach weight to the interests of others, while holding onto the language of the welfare principle, see Herring, above n 2.
7. Cp W v M and Others EWHC 2443 (Fam).
8. In re B (A Minor) (Wardship: Sterilisation) AC 199 at 202.
9.  Fam 147.
10.  EWHC 2003 (Fam) at .
11. Department of Constitutional Affairs Code of Practice (London: TSO, 2007) para 5.7.
12.  8 Med LR 217 at 225. See too Re J (a minor) (Wardship: medical treatment) Fam 33.
13.  1 FCR 361.
14. Re A (Male Sterilisation) 1 FLR 549.
15. Ealing LBC v S EWHC 636 (Fam); In the Matter of P EWHC 163 (Ch).
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27. J Herring ‘Vulnerability, children and the law’ in M Freeman (ed) Law and Childhood Studies (Oxford: Oxford University Press, forthcoming).
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32. See also Haybron, above n 23.
34. Although s 1(3)(f) does require the court to consider the capability of the parents to meet the needs of the child.
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36. Crisp, above n 31.
41. Herring, above n 2.
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50. (1992) 175 CLR 218 at 270.
51.  EWCA Civ 1361.
52. For a lengthier discussion see Herring, J ‘Farewell welfare?’ (2005) 27 JSWFL 151 Google Scholar.
53. See Airedale NHS Trust v Bland AC 789 at 871–872 and 894–895; Re Doe (1992) 583 NE 2d 1263 (Mass); Re Quinlan (1976) 355 A 2d 647 (NJ).
54. Re J (A minor) (wardship: medical treatment) Fam 33; Re E (A minor) (wardship: medical treatment) 1 FLR 386; Re W (A minor) (medical treatment: court's jurisdiction) Fam 64; Note, too, that s 4(6) of the Mental Capacity Act 2005 provides that the person making a best interests determination ‘. . . must consider, so far as is reasonably ascertainable – (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so…’
55. Choudhry, S and Herring, J European Human Rights and Family Law (Oxford: Hart, 2011) ch 3Google Scholar.
56. Re MB (Medical treatment) 2 FLR 426; Re A (male sterilisation) 1 FLR 549; Re S (adult patient: sterilisation) Fam 15.
57.  EWHC 3005 (COP).
58. Para 56.
59. See, for instance, Re J (Specific Issue Orders: Muslim upbringing and circumcision) 2 FLR 678; affirmed at  1 FLR 571.
60. See eg Re L (an infant) P 119; S v MC, E v W AC 24; B (BR) v B(J) P 466.
61. Herring, above n 2.
62. For present purposes we do not seek to probe the motives behind the discharge of an obligation imposed by a relationship. It does not affect our argument if an altruistic act turns out, if one looks hard enough, to be an example of mutually back-scratching reciprocal altruism.
63. See, for instance, Re B (A minor) (wardship: sterilization) AC 199; Rochdale Healthcare NHS Trust v C FCR 274.
64. See Foster, above n 40.
65. We accept, though, that the relationship between flourishing and altruism is more complex than we have painted it as being here. A detailed account of that relationship is not, however, relevant to the thesis we are now advancing.
67. (1990) 566 NE 2d 1319.
68.  Fam 110, 113–114.
69. At 1331.
71.  Fam 110 at 113–114.
72. G Williams ‘Children as means and ends in large-scale medical research’ Bioethics, available at http://onlinelibrary.wiley.com/doi/10.1111/j.1467-8519.2010.01873.x/full; Harris and Holm, above n 20, at 121–129; J Coggon ‘Doing what's best: organ donation and intensive care’ in Danbury et al, above n 2.
73. World Medical Association, Declaration of Helsinki (2008).