Re KD (A Minor) (Access: Principles)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Templeman,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 18 February 1988 |
| Judgment citation (vLex) | [1988] UKHL J0218-1 |
| Date | 18 February 1988 |
| Court | House of Lords |
[1988] UKHL J0218-1
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
My Lords,
I have had the benefit of considering in draft the speech to be delivered by my noble and learned friend Lord Oliver of Aylmerton. I agree with it, and for the reasons he gives would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Oliver of Aylmerton. I agree with it, and for the reasons which he gives I would dismiss this appeal.
My Lords,
English common law and statute require that in all matters concerning the upbringing of an infant the welfare of the child shall be the first and paramount consideration. The European Convention for the Protection of Human Rights and Fundamental Freedoms, to which the United Kingdom is a party, provides by Article 8 that:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary … for the protection of health or morals, or for the protection of the rights and freedoms of others."
The English rule was evolved against an historical background of conflict between parents over the upbringing of their children. The Convention rule was evolved against an historical background of claims by the state to control the private lives of individuals. Since the last war interference by public authorities with families for the protection of children has greatly increased in this country. In my opinion there is no inconsistency of principle or application between the English rule and the Convention rule. The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation. In terms of the English rule the court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which could be caused by the resumption of parental care after separation has broken the parental tie. In terms of the Convention rule the court decides whether and to what extent the child's health or morals require protection from the parent and whether and to what extent the family life of parent and child has been supplanted by some other relationship which has become the essential family life for the child.
The child, Kenneth, who is the subject of this appeal was born on 8 March 1983. The appellant mother, who was then 16 years old, had no home of her own but a home was found for her and Kenneth by the local authority with a Mr. and Mrs. Howe. Kenneth proved to much of a tie for the appellant and on 31 December 1983 she left Kenneth with Mr. and Mrs. Howe and acquiesced in the search for long-term foster parents for Kenneth. Since 31 December 1983 the appellant has only seen Kenneth for an hour or two in any one week. In May 1984 Kenneth was moved to the home of long-term foster parents who now wish to adopt him. In November 1986 Judge Cohen made an order that the appellant cease to see Kenneth. The history of Kenneth is more fully set out in the speech to be delivered by my noble and learned friend, Lord Oliver of Aylmerton. I fully agree with his narrative, his analysis and his conclusions. For the reasons given by my noble and learned friend I am satisfied that in the words of Purchas L.J., the decision reached by the trial judge to order that the appellant mother cease to see her child, Kenneth, was "distressingly inevitable." In November 1986 the welfare of Kenneth 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 Kenneth had been integrated into the family life of his foster parents who had become mother and father to him; the family life of Kenneth and the appellant was lost beyond recall.
My Lords,
This is an appeal from an order of the Court of Appeal of 16 February 1987 affirming an order made in wardship proceedings on 24 November 1986 by Her Honour Judge Myrella Cohen sitting as a judge of the High Court by which it was ordered that access to the ward by the appellant, his natural mother, be terminated and that the respondents be at liberty to place the ward for adoption. The mere recital of the terms of the order sufficiently indicates the gravity and the difficulty of the decision to which the judge and the Court of Appeal felt impelled. When I say that it is indeed a case which saddens the heart I shall merely be echoing what has been said by all the six judges who, over the past three years, have been called upon to consider it. The background facts have been exhaustively explored in two judgments in the High Court and two judgments in the Court of Appeal. I venture to restate them for two reasons. In the first place, an appreciation of the factual background is essential to an understanding of the point of law - or what, at least, is perceived by the appellant as the point of law - which your Lordships have been called upon to determine. Secondly, in the judgments both of Judge Cohen and the Court of Appeal certain criticisms were voiced of the conduct of the respondents - criticisms which, your Lordships have been told, have achieved some local notoriety and which have been repeated before your Lordships, although it should be stated that Mr. Ward Q.C., who has appeared for the appellant, has not sought to make them any part of his case. It is only fair to the respondents, whose counsel was not called upon in the Court of Appeal and who, therefore, have had no previous opportunity to answer those criticisms, that their explanation of what has been presented as a combination of bureaucratic insensitivity and an obstinate disregard of the spirit of the court's orders should be recorded. Parliament has conferred upon local authorities far-reaching powers to order the lives of minors for whom they are given statutory responsibilities, powers in some cases which, although reviewable by the process of judicial review, are otherwise largely unsupervised by the courts. It is of the utmost importance that such powers should be exercised not only with responsibility but with the sensitivity which is required by the impact which their exercise inevitably has upon the naturally strong emotions of the people affected. No judge called upon to exercise the court's jurisdiction in wardship can be unaware that cases do occasionally occur where a decision is taken by a local authority - sometimes, effectively, by a single social worker who is the only person with first-hand knowledge of the case - which, viewed by any reasonable objective standard, is properly to be categorised as dictatorial, insensitive or prejudiced. To say that is to say no more than that local authorities are conducted and staffed by human beings and thus subject, as is the common lot, to human fallibility. But when such cases occur, it is right that they should be censored. On the facts of this case, however, and with deference both to Judge Cohen and to the Court of Appeal, I have to say that I am not persuaded that this is such a case or that the difficulties with which the respondents have been faced have been sufficiently appreciated.
My Lords, the ward with whom this appeal is concerned is a little boy, Kenneth, who was born on 8 March 1983 and is thus now some four years and nine months old. Although during the first nine months of his life, he was living with and was cared for by the appellant, he has, since the beginning of 1984, been continuously in the care of foster-parents, although the appellant has had more or less regular access to him up to the date of Judge Cohen's order. It is fashionable nowadays to speak of children born into circumstances of poverty or homelessness as "disadvantaged" and if ever that adjective was merited it is so in the instant case, both by the appellant and by Kenneth. Through no fault of her own, the appellant is the product of a tragically deprived background. Neglected by her mother, abused by her father, she was taken into care by the respondents at the age of 11 and until the birth of Kenneth was accommodated in an approved school. Whilst there, following efforts by the respondents to find a family who would take an interest in her welfare, she became friendly with a Mr. and Mrs. Howe, a couple who were approved shortterm foster-parents. That contact was interrupted when she was confined to the school for some disciplinary offence. Thereafter, she became acquainted with a young man whose home she visited at weekends. Intercourse took place and she became pregnant with Kenneth when she was only 15 years of age. During her pregnancy she re-established contact with Mr. and Mrs. Howe, who visited her after the baby's birth at the Rye Hill Family Care Centre where she was currently being accommodated. There she learnt to care for the child satisfactorily and it is not in dispute that she loves him and, when her mind is directed to it, is capable of coping satisfactorily with his needs. She was, however, very immature and there were a number of occasions upon which she allowed her interest in going out and meeting boyfriends to take priority over the interests of her child. She formed an association with a rather unsatisfactory young man and in June 1983 became pregnant again. On...
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