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Family Law

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'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? [2010] CFLQ 422

Helen Reece, Reader in Law, Department of Law, London School of Economics

In Re P (Adoption: Unmarried Couple) [2008] UKHL 38, [2008] 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 [1999] 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.

The full version of this article appeared in 2010 issue 4 of Child and Family Law Quarterly.

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