It is important to understand that the abusive and harmful parental behaviours which the term parental alienation refers to, are primarily considered by our family courts from the child’s perspective.
It is not about the mother’s rights nor father’s rights. It is primarily about the child’s rights and ‘best interests.
This is a key principle in family law which states that the welfare of the child should be the paramount consideration of the Court in all decision making.
When any court determines any question with respect to:
- The upbringing of the child, or
- The administration of the child’s property or the application of any income arising from it the child’s welfare shall be the court’s paramount consideration.
The court has to treat the child’s welfare as its paramount consideration, not its first and paramount consideration. The paramountcy principle is regarded as reflecting the previous well-established position summarised in a leading case as:
“A process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because of its first importance and the paramount consideration because it rules upon or determines the course to be followed.”
In interpreting the paramountcy principle and in light of Human Rights Act legislation 1998; respect must also be given to other person’s rights, i.e. the parents. Where the child’s interests’ conflict with the parents, the child’s interests should prevail.