‘First or Foremost’: Should Welfare be the Paramount Consideration in Decisions Concerning Financial Provision?

This article examines the extent to which the shift introduced by the Children Act 1989, establishing the welfare of the child as the paramount consideration in decisions concerning the upbringing of children and/or the management of their assets, can be meaningfully realised when financial remedies between separating parents are determined under a different normative framework. While the Act firmly embeds the welfare principle within disputes relating directly to children, financial settlements between spouses are typically resolved under the regime of the Matrimonial Causes Act 1973. Within the Matrimonial Causes Act 1973, the welfare of children is not paramount but the first factor among several to be considered. This paper explores whether this structural separation can lead to tensions that may undermine the welfare-centric ethos intended by the Children Act 1989.
The analysis developed in this article explores how financial outcomes between parents, such as property division and maintenance, inevitably shape the material circumstances in which children are raised. It therefore asks whether the child’s welfare can truly remain paramount if the same principle does not govern financial decisions affecting family resources. Lastly, this issue is analysed within a broader rights-based framework, focusing in particular on the potential tension between children’s interests and the human rights of parents protected under the European Convention on Human Rights. Through an examination of case law, statutory interpretation, and theoretical perspectives on family justice, this article aims to assess whether the current legal framework effectively balances these competing considerations, or whether it risks prioritising adult entitlements over children’s welfare. Ultimately, this work aims to question whether the welfare principle can operate coherently across family law without greater integration between child-focused decisions and financial remedies between parents.