Becoming tyrannous?: A capabilities approach to best interests assessments

Prof. Michael Thomson (School of Law, University of Leeds)

Abstract

The Children Act 1989 sets out that the welfare of the child must be the paramount consideration in any decision made with regard to the upbringing of a child. This ‘best interests standard’ has become a core principle of welfare law. At the same time, what might constitute the best interests of children is given very little formal shape or content. Indeed, it has been argued that the standard is so vague as to be meaningless. Further, the test has been criticised as being too subjective, allowing room for personal prejudice in decision-making, and operating to advance parental and professional interests over the child’s best interests. Notwithstanding such criticism, no satisfactory alternative framework has been forthcoming.

The Capabilities Approach proposed by Amartya Sen and others provides a theoretically nuanced framework for evaluation and deliberation. It has as its central characteristic a focus on what people are effectively able to ‘be and do’. It is argued that well-being and justice are best conceptualised in terms of people’s capabilities to function; that is, their effective opportunities to undertake the actions and activities that they want to engage in, and be whom they want to be. The approach has recently been interpreted as a normative language; the flexibility of the approach allowing actors to interpret the components of the theory in different settings, and construct context dependent policy narratives. Acknowledging this flexibility and sensitivity to context, this paper argues that the Capabilities Approach can provide a principled decision-making framework for best interests assessments and, indeed, law more generally where the utility of the approach has been under explored.