Abstract
This chapter explores how the courts have applied the welfare test or best interests principles. We argue that although the courts are not normally explicit about doing so, they do in fact take into account the relational context of the case and the importance of promoting virtue. We suggest, therefore, that the understanding of welfare and best interests promoted in this book would not entail a significant change either to the outcome of most cases or to the substance of the reasoning, but we contend that it would be more satisfactory if the courts acknowledged explicitly their use of relationality and virtue.
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Notes
- 1.
A detailed analysis of the welfare principle and its interpretation can be found in Herring (2015: Chap 10).
- 2.
UN Convention on the Rights of Children, in Article 3, states that the child’s welfare should be the primary consideration. This appears to place slightly less weight on children’s interests than s 1 of the Children Act 1989.
- 3.
- 4.
Similar endorsement of the views of the community can be derived from cases permitting (for instance), male circumcision.
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Foster, C., Herring, J. (2015). What Do the Courts Do?. In: Altruism, Welfare and the Law. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-21605-8_4
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DOI: https://doi.org/10.1007/978-3-319-21605-8_4
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