wheres the beef in the sacred cow?
Robin Tolson QC, Outer Temple Chambers Why has the Human Rights Act 1998 made so little difference to children involved in the family justice system since it came into force on 2nd October 2000? Lip service is regularly paid to Convention principles, but in truth it is difficult to find a reported children’s case in which Article 8 has made a difference to the outcome. Is our system perfectly compliant? Are lawyers not identifying the weaknesses and presenting the right arguments? Are our judges impervious to European law? One reason for the lack of impact may lie in the sacred cow of the law relating to children: the welfare test set out in section 1 of the Children Act 1989. It is so broad in the discretion it creates and so dominant in its position within domestic proceedings that, I suggest, it does not permit a rights-based examination of the case. The welfare test has been law for a long while. It first appeared in statute in 1925 when section 1 of the Guardianship of Infants Act
