Out in the cold? The case of non-subject children

Andrew Bainham Emeritus Reader in Family Law and Policy University of Cambridge

This paper focuses on the legal position of children who may be affected by family proceedings but who are not subject children in them. The current law which holds that the welfare of the subject child is paramount is discussed and contrasted with the original view of the Law Commission. The extent to which the courts have felt able to accommodate the interests of non-subject children is examined.

The author argues that there should be earlier identification of any children whose welfare may be affected by family proceedings. The courts should then be more willing to join such children as parties. Where children are joined in the proceedings it is further argued that their welfare should be equally paramount alongside that of the subject children. The court should then apply a ‘balance of welfare’ test in resolving any conflicts of interest between all the child parties. The legislation can be properly interpreted in a way which can achieve this result and the moral case for doing so is strong. Substantial conflicts of interest between...