Editorial Committee of the Cambridge Law Journal

Family Responsibilities and Children's WelfareAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 48, No. 1 (Mar., 1989), pp. 36-38Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507247 .

Accessed: 18/06/2014 16:50

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 62.122.76.60 on Wed, 18 Jun 2014 16:50:33 PMAll use subject to JSTOR Terms and Conditions

36 The Cambridge Law Journal [1989]

He could not do this because the English courts had treated New

Zealand as a foreign State for the purpose of enforcement of its laws

in the Oritz case. One had thought that this idea of the unity of the

Crown is as dead as mutton (or extinct as the moa) and that the

Kiwis like to think of the constitutional umbilical cord with the Old

Country as severed. In any case, for the purposes of the English conflict of laws any country other than England is foreign, including even Scotland.

It has to be said that, for English private international lawyers, our Antipodean mates have shed more darkness than light in an

already murky corner.

J. G. Collier.

36 The Cambridge Law Journal [1989]

He could not do this because the English courts had treated New

Zealand as a foreign State for the purpose of enforcement of its laws

in the Oritz case. One had thought that this idea of the unity of the

Crown is as dead as mutton (or extinct as the moa) and that the

Kiwis like to think of the constitutional umbilical cord with the Old

Country as severed. In any case, for the purposes of the English conflict of laws any country other than England is foreign, including even Scotland.

It has to be said that, for English private international lawyers, our Antipodean mates have shed more darkness than light in an

already murky corner.

J. G. Collier.

Family Responsibilities and Children's Welfare.

In Re M. and H. (Minors) (Local Authority: Parental Rights) [1988] 3 W.L.R. 485 is likely to be the last of a line of House of Lords' decisions which have thwarted the entitlement of parents and others

to challenge decisions of local authorities relating to the custody and

access of parents and others to children in their care. The House had

developed a self-denying ordinance derived from Parliament's having entrusted to local authorities the powers and duties to make decisions about the welfare of children in their care: A. v. Liverpool County Council [1982] A.C. 368, Re W. (A Minor) (Wardship: Jurisdiction)

[1985] A.C. 791. There is now a change of fashion, and the Children Bill 1988 (soon to become the Children Act 1989) will put an end to local authority autonomy.

In In re M. and H. the father issued a summons pursuant to the

Guardianship of Minors Act 1971 for legal custody and access in

respect of his two children, both of whom had been subject to a Parental Rights Resolution under section 3(1) of the Child Care Act 1980 which vests parental rights in the local authority. The House of Lords held that although the court had jurisdiction to entertain the father's application, it could not exercise it so as to review the decision on its merits.

The Children Bill 1988 sweeps all this away. The Guardianship of Minors Act 1971 and the Child Care Act 1980, with its much criticised Parental Rights Resolution, are repealed and replaced by a

comprehensive legislation dealing with both the private law between

parents, and the public law relating to the protection of children at risk. Whatever reservations one may have about the details of various

aspects of the new law, we will have a legislative framework which

provides guidance for all those concerned in making decisions which

Family Responsibilities and Children's Welfare.

In Re M. and H. (Minors) (Local Authority: Parental Rights) [1988] 3 W.L.R. 485 is likely to be the last of a line of House of Lords' decisions which have thwarted the entitlement of parents and others

to challenge decisions of local authorities relating to the custody and

access of parents and others to children in their care. The House had

developed a self-denying ordinance derived from Parliament's having entrusted to local authorities the powers and duties to make decisions about the welfare of children in their care: A. v. Liverpool County Council [1982] A.C. 368, Re W. (A Minor) (Wardship: Jurisdiction)

[1985] A.C. 791. There is now a change of fashion, and the Children Bill 1988 (soon to become the Children Act 1989) will put an end to local authority autonomy.

In In re M. and H. the father issued a summons pursuant to the

Guardianship of Minors Act 1971 for legal custody and access in

respect of his two children, both of whom had been subject to a Parental Rights Resolution under section 3(1) of the Child Care Act 1980 which vests parental rights in the local authority. The House of Lords held that although the court had jurisdiction to entertain the father's application, it could not exercise it so as to review the decision on its merits.

The Children Bill 1988 sweeps all this away. The Guardianship of Minors Act 1971 and the Child Care Act 1980, with its much criticised Parental Rights Resolution, are repealed and replaced by a

comprehensive legislation dealing with both the private law between

parents, and the public law relating to the protection of children at risk. Whatever reservations one may have about the details of various

aspects of the new law, we will have a legislative framework which

provides guidance for all those concerned in making decisions which

This content downloaded from 62.122.76.60 on Wed, 18 Jun 2014 16:50:33 PMAll use subject to JSTOR Terms and Conditions

C.L.J. Case and Comment 37

involve the difficult balance between respect for parental (and one

hopes family) responsibilities on the one hand and the paramountcy

of the child's welfare on the other hand.

A care order will be available on an application to a court, which

will have to be satisfied that the child has suffered significant harm

or is likely to do so and that this is attnbutable to "the standard of

care given to the child below that which it would be reasonable to

expect the parent of a similar child to give him" (clause 26(2)). If a

child is made the subject of a care order, then the local authority

must allow him reasonable contact with his parents or any person

who has parefltal responsibility for him (clause 29). Furthermore,

parents may apply to the court to obtain an order requiring the local

authonty to allow the applicant such contact with the child as may

be specified therein. Parliament intends the court to make the

decision, and there is a strong presumption in favour of contact.

Indeed, a local authonty may only refuse contact on its own initiative

when it decides to do so "as a matter of urgency" for a maximum of

seven days (clause 29(6) ). If it requires an extra period, it must apply

for a court order refusing contact: (clause 29(4) ). Such an order is

rarely likely to be made, given the statutory presumption in favour

of reasonable contact (clause 29(1) and schedule 2, para. 13). This

represents a dramatic shih from autonomy of local authorities to

decision-making by the courts. Although Re M. and H. may therefore be of limited future

interest, it is still important, because of the arguments on behalf of

the applicant that the earlier cases of A v. Liverpool City Council

and Re W. (A Minor) had been wrongly decided. The first was that,

though the courts are required to make decisions about children in

accordance with their welfare as the "first and paramount con-

sideration," by section 18 of the Child Care Act 1980 local

authorities need have regard only to their welfare as the ''xSrst'' but

not necessarily "paramount" consideration. Lord Brandon rejected

this, saying ". . .where no question of protecting members of the

public arises, the effect of section 18(1) of the Act of 1980 is to make

the welfare of the child not only the first consideration, but by

necessary implication also the paramount consideration, to which

regard must be had." (See now Children Bill, clauses 1(1) and

18(3)(6) ). The second argument was that the principle of law implicit in A.

v. Liverpool City Council and Re W. (A Minor) was in breach of

article 8 (respect for family life) and article 6 (entitlement to a heanng

by a tnbunal in the determination of civil rights and obligations) of

the European Convention for the Protection of Human Rights (See

R. v. United Kingdom [1988] 2 F.L.R. 445). Lord Brandon thought

This content downloaded from 62.122.76.60 on Wed, 18 Jun 2014 16:50:33 PMAll use subject to JSTOR Terms and Conditions

38 The Cambridge Law Journal [1989]

it questionable whether, in the context of article 6, the putative father

had any civil right to the custody of or access to the children.

Presumably, the position is still the same with regard to a putative father who has not acquired parental responsibility either by court

order or by a "parental responsibility agreement" (Children Bill 1988, clauses 2(2), 4(1)). With regard to article 8, he doubted whether the

father had, in relation to his non-marital children, any "family life."

This is surely wrong. In R. v. United Kingdom the President of the

European Court of Human Rights said: "The exercise of parental

rights and the mutual enjoyment by parent and child of each other's

company constitute fundamental elements of family life"; it seems to

make no difference that the parents had not concluded a "parental

responsibility" agreement. But even if there had been a breach of the Convention Lord

Brandon said that it is not part of English law and he was bound to

give effect to a statute which is unambiguous even if it conflicts with

the Convention. This is still true; therefore, it is vital that Parliament

ensures that the Children Bill complies fully with the terms of the

Convention.

The father in Re M. and H. will in future have a remedy; at least

if what he wants is simply contact. However, neither he nor anyone else will be able to challenge a decision of a local authority respecting other aspects of the child's life, such as schooling. The uncle and aunt and paternal grandparents who were the applicant-relatives in Re W. (A Minor) will be able to apply for contact with leave of the

court. The Children Bill (clause 18(4)) imposes a general duty on the

local authority, before making any decision, and so far as it is

reasonably practicable, to ascertain the wishes of the child, his

parents, and any person who is not a parent but who has parental responsibility. But what if the parent or other adult objects? He

appears to have no effective remedy under the Bill. Although

"partnership" and "co-operation" are the basis of the new legislation, the absence of any forensic remedy may well create the sense of

desperation and resentment only too familiar in recent years. And the uncles, aunts, grandparents, even step-parents, who may not

necessarily have parental responsibilities, do not even need to be consulted. We have surely learnt that the family unit is not a private and secret community of two adults and their children. The wider

family must play a significant role; we ignore this at our peril.

David Pearl.

This content downloaded from 62.122.76.60 on Wed, 18 Jun 2014 16:50:33 PMAll use subject to JSTOR Terms and Conditions