Peter G Harris, Exeter College and Oxford Centre for Family Law and Policy, University of Oxford
This article advances the thesis that the alleged conflict between Article 8 of the ECHR and the welfare principle embodied in section 1 of both the Children Act 1989 and the Children and Adoption Act 2002 is the result of the judges failing to distinguish the different purposes and legal character of that Article and those two sections. It argues that Article 8 should be construed as a jurisdictional provision which determines which orders, if any, are in law available to the court, while the welfare principle determines which, if any, of those available orders to make. That construction makes the provisions complimentary rather than conflicting and also addresses a range of related legal, policy and practical difficulties to which the current construction gives or risks giving rise.
The full version of this article appears in the March 2014 issue of Family Law.