NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01777.x |
| Date | 01 September 1988 |
| Published date | 01 September 1988 |
NOTES
OF
CASES
ACCESS RIGHTS
AND
CHILDREN’S WELFARE
WHETHER, and, if
so,
the extent to which a parent should be
allowed to maintain contacts with a child who is living apart from
that parent has been one
of
the most controversial issues in child
care practice.’ It now threatens to become a legal battleground. A
decisive move into the legal arena was taken when the Health and
Social Services and Social Security Adjudications
(H.A.S.S.A.S.S.A.) Act
1983
permitted parents whose access to
their children in care had been refused or terminated by the local
authority to appeal the decision to the juvenile court.2 In
R.
v.
U.K.3
the European Court of Human Rights added to the legal
input by declaring that, even where a parent’s “rights” respecting a
child had been transferred to the local authority under a care order
or parental rights res~lution,~ the parental “right” to access
survived. Now, in
Re
K.
D.
(A
Minor) (Ward: Termination
of
Acce~s),~
the House of Lords has had to consider whether its
earlier decision in the landmark case of
J.
v.
C.,6
which firmly
declared that decisions taken under the wardship jurisdiction were
to be based on the paramountcy of the welfare of the child, had
obliterated any parental “right” to access and might, therefore, be
inconsistent with the interpretation given to the European
Convention on Human Rights and Fundamental Freedoms in
R.
v.
U.
K.
Indeed, it has even been questioned whether it makes sense
to talk about rights at all in this context.’
Re
K.
D.
was a difficult, but not unusual, case for the local
authority. A 15-year-old girl had given birth to the child; her initial
attempts to care for it foundered on the competing attractions
of
her social life, and the decision was taken that the baby should be
placed out with long-term foster parents and, eventually, that the
mother’s access should be terminated. The baby was warded and
the issues determined within that jurisdiction. The trial judge
accepted the decision; the Court of Appeal reversed, wanting a
longer period spent on trying rehabilitation with the mother. A
’
Goldstein, Freud
&
Solnit,
Beyond
the
Besr
Inrerests
of
rhe
Child
(1973);
M.
P.
M.
Richards, “Children, Parents and Families: Developmental Psychology and the Re-
ordering
of
Relationships on Divorce” (1987)
1
1nt.Jo.
of
Law
&
Fam. 295.
H.A.S.S.A.S.S.A. Act 1983, s.6 and Sched.
1,
adding ss.12A-G to the Child Care
Act 1980.
R.
v.
U.K.;
W.
v.
U.K.;
B.
v.
U.K.,
Judgments and Decisions
of
the European
Court
of
Human Rights,
Vol.
121 (July 1987);
0.
v.
U.
K.;
H.
v.
U.K.,
ibid.,
Vol.
120
(July 1987).
Under the Children and Young Persons Act 1969 and the Child Care Act 1980
res ctively.
[1970] A.C. 668.
q1988
2
W.L.R. 398.
’
A.
v.
C.
[1985] F.L.R. 445, 455
(per
Ormrod L.J.).
629
630
THE
MODERN
LAW
REVIEW
[Vol. 51
year later another judge accepted termination and the appeal this
time failed.
The crux
of
the issue argued before the House of Lords was
whether access should be permitted only if this was found to be in
the child’s interests, or whether it should always be allowed unless
it was shown that its exercise would be damaging to the child. It
was argued that the former view effectively failed to recognise the
existence of a parental right of access. It simply treated parental
contact as one of a conglomeration of factors which had to be
weighed in deciding what was best for the child. There were strong
grounds for believing that this was indeed the true legal position.
I
have set out elsewheres reasons for interpreting the majority
decision in
J.
v.
C.
in this way. It is certainly an approach which
has been consistently applied. It probably accounts for the
oft-
quoted dictum of Wrangham J. that access is the right of the child,
not the parent.g Ewbank J. appeared to follow it when he said1’
that the parent’s feelings about access were irrelevant unless it
could be shown that access was beneficial for the child, a statement
which echoed remarks made by Ormrod L.J. in
A.
v.
C.;”
Arnold
P.
clearly accepted it in
Hereford and Worcestershire County
Council
v.
J.A.H.12
in the observation that the question whether
access was favourable from the child’s point of view “is not a
matter which should be influenced by the conception that a natural
parent has a right to that access to the child.” The remarks of both
Ewbank
J.
and Arnold
P.
were approved by Sheldon J. in
Re
M.
(A
Minor).’3
In
Re
K.
D.,
Lord Oliver, speaking for the majority of the
House of Lords, rejected the argument that this interpretation of
J.
v.
C.
was inconsistent with the recognition of parental rights. It
would be fruitless to speculate which interpretation better fits the
speeches
of
their Lordships in that case. But it is important to
understand how the law now stands. Lord Oliver thought that any
apparent conflict was merely semantic. The invocation of the
wardship jurisdiction, he asserted, does not terminate any parental
right14 to access; it simply makes it “subservient” to the welfare
consideration. To the extent that the court will “pay regard” to the
claim to access it would not, he said, “be inappropriate to describe
such a claim as a ‘right.”’ But this can be displaced if the interests
of the child indicate otherwise. What seems to happen is that the
“right” which a parent has to visit a child (in the sense that
J.
M.
Eekelaar, “What are Parental Rights?” (1973) 89 L.Q.R. 210, 216.
M.
v.
M.
[1973] 2
All
E.R. 81,85.
lo
Coventry
City
Council
v.
T.
119861 2 F.L.R. 301, 305.
ri9ssi
F.L.R.
445,
455.
~
I*
[1985 F.L.R. 530;
l4
Lord Oliver sometimes sDeaks
of
this as a “urivilege”: 119881 2 W.L.R. 398,
412;
but
119881
1
F.L.R. 35. See Lowe and White,
Wards
of
Court
(1986) 156-157.
it
may be better expressed
as
a “right” since
it
wouid bd a ldgal wrong to impede it
without lawful authority.
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