parental access to children in care

Editorial Committee of the Cambridge Law Journal

Parental Access to Children in CareAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 47, No. 2 (Jul., 1988), pp. 182-185Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507159 .

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184 The Cambridge Law Journal [1988]

taken into public care" (para. 64 of the judgment, cited in the

following case). Thus it comes as something of a surprise to find the House of

Lords, and in particular Lord Oliver of Aylmerton, in Re K.D. (A

Minor) (Ward: Termination of Access) [1988] 2 W.L.R. 398 going to

considerable lengths to exonerate a local authority who had been

criticised by the courts below as "bureaucratically insensitive" and

"obstinate."

It was submitted to the court on behalf of the mother, in the

context of a four-year-old child who was now a ward of court, first, that a natural parent has a legal right to have access to his or her

child and, secondly, that although that right may be overborne by considerations of the welfare of the child, the right must prevail and

be given effect to where there is no positive evidence that access to

the child would be damaging to him. Lord Oliver, in his speech,

emphasised that the first question was really academic on the facts of the case before the court, because there was conclusive evidence

that continued access was harmful to the child. The child had been

with long-term foster parents for over three years, and he had

effectively been separated from his teenage mother since he was nine

months old. Lord Templeman stated the facts in two pithy sentences:

"In November 1986, the welfare of K required that he should no

longer see the appellant because at the age of three years he could

not cope with two competing mothers. By November 1986, K had

been integrated into the family life of his foster parents who had

become mother and father to him; the family life of K and the

appellant [mother] was lost beyond recall."

However, Lord Oliver took the opportunity to review the law

relating to a "right" to access. In essence, he said that the "right" (or preferably, "claim" or "privilege") must yield to the dictates of

the welfare of the child. Lord Oliver emphasised that J. v. C. [1970] A.C. 668, which upholds the doctrine of the paramountcy of the welfare of the child, had not been disturbed either by the European Convention on Human Rights or by decisions of the European Court. He stated: "If the child's welfare dictates that there be access, it adds

nothing to say that the parent has also a right to have it subject to considerations of the child's welfare. If the child's welfare dictates that there should be no access, then it is equally fruitless to ask whether that is because there is no right to access or because the

right is overborne by considerations of the child's welfare."

Re K.D. is a distressing case, and few will read the narrative of Lord Oliver without realising the inevitability of the final result. Yet, is there not another way? If a "partnership" between local authorities and parents really means something, why cannot there be children's



C.L.J. Case and Comment 185

hearings in the juvenile court which can review the situation of all

children in care every year, or at least periodic reviews? Why do we

have to wait until the initiative is taken by one side or the other for

any significant court intervention? By then, it is usually far too late

anyway. What Re K.D. illustrates all too clearly is that decisions

about children, which we should really describe as decisions for

children, should be taken after full consultation with parents and

professionals working as a team for the welfare of the child. Is this

such a difficult concept?

David Pearl.

C.L.J. Case and Comment 185

hearings in the juvenile court which can review the situation of all

children in care every year, or at least periodic reviews? Why do we

have to wait until the initiative is taken by one side or the other for

any significant court intervention? By then, it is usually far too late

anyway. What Re K.D. illustrates all too clearly is that decisions

about children, which we should really describe as decisions for

children, should be taken after full consultation with parents and

professionals working as a team for the welfare of the child. Is this

such a difficult concept?

David Pearl.

ADOPTION COUPLED WITH ACCESS

"Adoption," said the Houghton Committee in 1972, "means the

complete severance of the legal relationship between parents and child. . ." (Report of the Departmental Committee on the Adoption of Children, Cmnd. 5107, para. 14). Partly for this reason the Committee recommended the introduction of an alternative kind of order for situations where long-term foster parents seek a measure of legal security without altering the child's basic relationship to members of his natural family. The Children Act 1975 accordingly introduced the infelicitously named custodianship order, though its

scope is strangely limited.

In Re C. (A Minor) (Adoption Order: Conditions) [1988] 2 W.L.R. 474, Mr. and Mrs. P, the foster parents of C, then aged eleven, applied to adopt her. Having lived with them for three years after spending six in various children's homes, C was keen to be

adopted; but a worthwhile relationship existed between C and her

eighteen year old brother which it was clear should not be sacrificed. Mr. and Mrs. P expressed their willingness for this relationship to

continue, but C's natural mother, fearing that an adoption order

might weaken it, withheld her consent. At first instance Judge Head,

sitting as a High Court judge, took the view that the relationship between C and her brother "ought to be preserved at all costs" and that this could not be achieved if an adoption order were to be made; so he concluded that adoption was not in C's interests, that her mother's refusal to consent was not unreasonable, and that the

application must be dismissed (though in wardship proceedings he direeted that C should continue to live with the P's). They appealed, arguing that the problem could best be solved by an adoption order with a condition for access (there being just one or two precedents for this kind of order) but the Court of Appeal dismissed the appeal, expressing doubt as to the permissibility of attaching a condition for access to an adoption order.

ADOPTION COUPLED WITH ACCESS

"Adoption," said the Houghton Committee in 1972, "means the

complete severance of the legal relationship between parents and child. . ." (Report of the Departmental Committee on the Adoption of Children, Cmnd. 5107, para. 14). Partly for this reason the Committee recommended the introduction of an alternative kind of order for situations where long-term foster parents seek a measure of legal security without altering the child's basic relationship to members of his natural family. The Children Act 1975 accordingly introduced the infelicitously named custodianship order, though its

scope is strangely limited.

In Re C. (A Minor) (Adoption Order: Conditions) [1988] 2 W.L.R. 474, Mr. and Mrs. P, the foster parents of C, then aged eleven, applied to adopt her. Having lived with them for three years after spending six in various children's homes, C was keen to be

adopted; but a worthwhile relationship existed between C and her

eighteen year old brother which it was clear should not be sacrificed. Mr. and Mrs. P expressed their willingness for this relationship to

continue, but C's natural mother, fearing that an adoption order

might weaken it, withheld her consent. At first instance Judge Head,

sitting as a High Court judge, took the view that the relationship between C and her brother "ought to be preserved at all costs" and that this could not be achieved if an adoption order were to be made; so he concluded that adoption was not in C's interests, that her mother's refusal to consent was not unreasonable, and that the

application must be dismissed (though in wardship proceedings he direeted that C should continue to live with the P's). They appealed, arguing that the problem could best be solved by an adoption order with a condition for access (there being just one or two precedents for this kind of order) but the Court of Appeal dismissed the appeal, expressing doubt as to the permissibility of attaching a condition for access to an adoption order.



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