Children are still coming second

ONE might suppose that, since the 1989 Children Act, British law now holds the welfare of the child to be paramount. But many recent decisions of the Court of Appeal make it clear that the court is prepared to override the welfare of the child.

Take last week's case involving a 10-year-old boy of Zulu parentage, who has been living with a white family since he was a baby. The Court of Appeal ordered that he should return to live with his natural parents in South Africa, in poverty and without the prospects of an education. As a parent it is difficult not to feel outrage.

It was not even as though there were fine judgements to make as to what was in the best interests of the welfare of the boy. Far from it. There was plenty to worry about regarding the conditions to which the boy would be returning. Lord Justice Ward said: "I am under no illusions whatever about the harm that return to South Africa will cause. It is not just the uncertainty about the stability of his parents' marriage, and their relationship, nor about their housing condition, nor economic security, nor personal safety. He will leave the comforts of Maida Vale for the comparative discomfort of Brakpan."

Despite all this, and two factors which are not reported as troubling their Lordships, namely the distress the boy would suffer at being torn away from the family he knows and the loss of an education, the Court of Appeal ordered him back. Their Lordships described this decision as "difficult and anxious". It is easy to understand the anxiety, harder to understand the difficulty. To anybody else the decision might appear quite straightforward. The welfare of the boy certainly appears to dictate that he should stay with the family he knows, here in Britain.

What is behind it? Why should the Court of Appeal come to a decision that seems to fly in the face of justice? The answer seems to be that a child is still seen by some in the judiciary as the property of its biological parents. A mere chattel. And, as owners, the natural parents are, in the absence of a transfer of property order, ie an adoption order, entitled to possession.

This attitude is usually disguised as the "right" of the child to be brought up by the natural parents. In this case Lord Justice Neill said: "Anyone who has studied this case cannot fail to have great admiration for the appellant and for the love and affection which she and her family have given to P since he was a baby. But he has the right to be reunited with his Zulu parents and with his extended family in South Africa." Enjoyment of this "right" will take the form of forcible repatriation to South Africa at Easter and an order that the boy shall not return to Britain for at least a year to allow him to settle to a "very different" lifestyle.

The judiciary gives the rights of biological fathers, in particular, often overwhelming weight, however small a part that father might actually play in the life of the child. The Court of Appeal is very reluctant to allow a change of the child's surname if the natural father objects. Cases where the court grants access to natural fathers who are violent and irresponsible, against the wishes of mothers are numerous.

On the same day that the Court of Appeal ordered P back to South Africa, it heard another case where it invoked the "rights" of the child: in this instance a baby boy's right to know his true paternity.

The court ordered DNA tests to be carried out so that the child could know who his biological father was in a case where a married woman had had an affair. In truth, it does not appear to be the right of the child that the court is upholding, but the "right" of the lover to establish paternity. Either way, such rights seem to be overriding the welfare of the child, given that the mother and husband are reconciled, the father accepts the boy as his third son, there is a legal presumption that the boy is the legitimate son of the husband, and the court said it was most unlikely that the lover would be granted contact to the child in any event.

"Honesty is the best policy," said the Court, a fine principle but always absolutely true in all circumstances? Undoubtedly people have been hurt in the past by being denied the truth about their parentage. But is it right to assume it is always best to tell the third child in a family that his dad is not really his father. And if he is to be told, when? According to the judge: "If the child has the right know, then the sooner he is told the better." A young child can only understand so much. Should he be told more than he can cope with?

The fashionable presumptionthat the child is best off with its natural parents and that this outweighs all other welfare factors, is developing into a broader idea that it is also best for a child to be brought up in the way of life and religion practised by the biological parents. This has been referred to as the child's "heritage" or "birthright". Am I alone in finding the concept that it is "best" for a child's culture to be set in stone at birth distasteful? What that is saying is that you are born into your position - your class - and nothing that happens to you subsequently can change that. If you are born an Untouchable then you will always be an Untouchable. Know your place.

It suggests that it is impossible (harmful even) to become assimilated into a different culture. It is impossible, even with the benefit of an education, to better yourself.

Lord Justice FitzGibbon put this argument in 1900: "Where the parent is of a blameless life, and is able and willing to provide for the material and moral necessities, in the rank and position to which the child belongs - ie the rank and position of the parent - the court is, in my opinion, judicially bound to act on what is equally a law of nature and society ... that 'the best place for a child is with its parents'."

Much has been made of the wrong which was done to black adopted children in the 60s, 70s and 80s, by denying them knowledge of, or contact with, people of their own colour and their birth culture. Now the pendulum has swung far the other way and it is assumed that it must always be best for a black child to be brought up by black parents in the child's birth culture - regardless of other circumstances. One wonders whether the court would have ordered P back to South Africa "to discover his roots" if he had been from a poor white family.

The Court of Appeal's decisions are simply not upholding the welfare of the children that come before it. It is not applying the clear directions of the House of Lords which, time and again, makes it clear that the "rights" of the parent or child will be displaced if the interests of the child so dictate.

Lord Justice FitzGibbon recognised exceptional circumstances: "Of course I do not speak of exceptional cases ... where special disturbing elements exist ... such as the disturbance ... of settled affections, or the endurance of hardship or destitution with a parent, as contrasted with solid advantages offered elsewhere. The Court, acting as a wise parent, is not bound to sacrifice the child's welfare to the fetish of parental authority, by forcing it from a happy and comfortable home to share the fortunes of the parent, however innocent, who cannot keep a roof over his head, or provide it with the necessities of life."

In the leading case in this area, Re KD (a minor), which turned on facts very similar to those in P's case, the House of Lords in 1988 reaffirmed this view and pointed out that the House had applied the principle of upholding the child's welfare in cases consistently since.

One feels sympathy for a natural parent who may be denied his or her "rights". But being a good parent, as King Solomon observed, often involves self-sacrifice. If I was on the receiving end of either of these recent Court of Appeal decisions I would seek leave to appeal to the House of Lords.

The author is a solicitor.