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Family Law

The leading authority on all aspects of family law

24 MAY 2011

Penny Booth: Hands on or off?

Penny BoothTwo items struck me this week - child protection and surrogacy. Disparate? No, linked.

The first issue is perhaps one of those virtually insoluble issues in family and child law which only seems to have increased its visibility in recent years. The issue of ‘don't touch' was in the Sunday Times this week with a short report on an Economic and Social Research Council funded piece of research on issues in sports coaching, children and child protection.

The Manchester Metropolitan University research highlights the problems among sports bodies on the problem of (not) touching children, and how the current anxiety and child protection concerns may lead to the opposite - child endangerment. That, though serious, is not the only thing being lost here. The report seems to indicate that many sports coaches and others involved in teaching children about sporting activities are worried. This presumably includes those other activities that may involve physically touching children whilst being perfectly harmless and within the context of the activity. Why are they worried? They feel that lives are being put at risk because sports coaches in particular feel unable to touch children for fear of being accused of unsuitable behaviour and even sexual abuse.                                            

There is confusion about what constitutes ‘(in) appropriate behaviour' and this may result in an increasing approach of ‘covering your back' on the part of the adult rather than tending to safety and teaching. How tragic that is. The many sporting organisations, often staffed by volunteers, are feeling under pressure, even after Michael Gove's announcement of the possible scrapping of the ‘no touch' policy last year. They take action to avoid it.

There certainly are worries about this issue and fear of litigation increases the propensity of organisations to create their own ‘job-creation scheme' to try to ensure they are not sued. Lawyers have a lot to answer for.

Surrogacy. Go forth and multiply?                                                                                     

It is reported that a High Court Judge has told the BBC that he is approving commercial surrogacy agreements made by British couples abroad. I am not sure that the fait accompli leaves the court with much choice, really. What do you do when the child is here in the UK already and you cannot send it back from whence it came? Welfare really is the final consideration.

The current situation is of concern - money seems to cover all points and commercial transactions really are the ‘elephant in the living room' where this is concerned - or is it the nursery which is worse still because there is even less room to manoeuvre? The judge is right - commercial surrogacy is highly controversial but HM Government needs to address the issue before too many simply take the fait accompli approach. It is not enough to tell people to prepare properly and be aware of the legal implications, though. Should there be a penalty if you bring a child into the country without proper documentation?

On the one hand we have caused a potential problem with over-caution on child protection which in the long run will damage volunteering and sports activities for the children's benefit. It is right to be concerned and to protect, but we should ask - have we gone too far the other way? Do we feel more secure because we are more secure, or because we have ‘procedures' in place? Probably far fewer paedophiles have been caught by these procedures than have learned how to circumvent them. We seem happy to devise procedures designed to protect children yet we are content to allow others to be born without proper and appropriate concern for welfare issues - we are ‘selling' children in all but name and in more than one way.

Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.

She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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