Reece, Helen (2010) 'Bright line rules may be appropriate in some cases, but not where the object is to promote the welfare of the child': barring in the best interests of the child? Child and Family Law Quarterly, 22 (4). pp. 422-448. ISSN 1358-8184
In Re P (Adoption: Unmarried Couple)  UKHL 38,  2 FLR 1084 the House of Lords held that a bar on adoption by unmarried couples is unlawful discrimination contrary to Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). In R v Secretary of State for Health and Kent County Council, ex p B  1 FLR 656, the High Court found that a bar on fostering by convicted sex offenders is lawful. In what follows, I argue that the reasoning in Re P applies mutatis mutandis to individuals such as those in ex p B prevented from adopting or fostering under vetting and barring schemes, the most prominent being the scheme introduced by the Safeguarding Vulnerable Groups Act 2006. I first consider various ways in which such individuals could bring themselves within the grounds protected by Article 14, and I argue that 'sex offender' itself could be a protected status, because sex offenders have the personal characteristic of 'risk'. I next analyse whether the bar on adoption and fostering, and vetting and barring schemes in their entirety, would fall within the ambit of a substantive Article of the ECHR, and I conclude that the whole Safeguarding Vulnerable Groups Act scheme would come within the scope of Article 8. Finally, I consider whether the bar on adoption and fostering by risky individuals is objectively justified, and I conclude that the argument that convinced the House of Lords in Re P applies equally in this context: it is impermissible to turn a reasonable generalisation into an irrebuttable presumption for individual cases, given the duty to treat the best interests of the child as paramount.
|Additional Information:||© 2010 Jordan Publishing Ltd.|
|Library of Congress subject classification:||K Law > K Law (General)|
|Sets:||Departments > Law|
|Date Deposited:||11 Jan 2011 11:18|
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