Could Jessica's story happen here?: UK law usually prevents courtroom fights between parents and children, says Nigel Housby-Smith

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TWO-YEAR-OLD Jessica, adopted at birth, was driven screaming from her comfortable suburban home in Ann Arbor, Michigan, towards a new life with her natural mother and father in Iowa. The harrowing separation, seen by millions of television viewers around the world, followed a US court ruling that the rights of her natural parents took precedence over those of her adoptive parents.

In a Florida court, meanwhile, 14-year-old Kimberly Mays was eloquently defending her right to remain with the only father she has ever known. The court must decide on the claim of her natural parents to custody, filed after a maternity ward mix-up had belatedly come to light.

These two heart-rending cases, widely reported in this country, have raised the question of what might happen here in similar circumstances. Cases such as these would test the central concepts of the 1989 Children Act, which relates to parental responsibility and the primacy of the welfare of the child.

In the first of the US cases a baby girl, Jessica, was born to unmarried parents and the mother put her up for adoption. The little girl lived with her new parents for more than two years, until last week, when the courts decided that her mother could change her mind and reclaim the baby.

Should this kind of situation ever reach the courts in Britain the question would be determined with reference to section 1(1) of the Children Act, which states that the welfare of the child shall be the court's paramount consideration. No order can be made under the Act unless it is deemed to be in the child's best interest. The judge must have regard to factors such as the emotional and educational needs of the child, the likely effect of a change in circumstances, any harm she has suffered, her age, background and anything else the court believes relevant.

In Jessica's case, the decisive factor was probably that the relationship between the biological parents had subsequently stabilised, and they had married. In Britain this would be taken as evidence that they were now more capable of meeting the child's needs. Although it is not stated in the Act there does appear to be a presumption in favour of the biological family.

A guide to good child care practice produced by an official advisory group in 1989 suggests that children who are able to experience normal life in their family of birth gain some unique advantages. This is not a hard and fast rule, more an 'everything else being equal' decider.

This guide, however, also mentions that a change of home or a change in the person giving care almost always carries some measure of risk to a child's development and welfare. The degree of emotional disturbance an enforced change can provoke was demonstrated on Monday, when Jessica cried and screamed in front of the cameras as she was carried away from her adoptive parents. In Britain it would be up to the courts to assess that risk and balance it against the other factors.

Given that the child is very young, a British judge would probably reach the same conclusion that the US court did, though possibly for different reasons. The current debate in the US is over whose rights are most important, the parents', the foster parents', or the child's. The question has not been resolved by the judgment in this case. In Britain it is clear: the welfare of the child is paramount.

The case of Kimberly Mays, which is still going on, raises the question of how far a young person's wishes should be judged to coincide with her welfare.

Kimberly Mays is applying for a court order to prevent her biological parents from visiting her. These visits, she says, leave her depressed and upset and she is 'positively sure' she never wants to see the couple again.

Several years before the Children Act was passed, the House of Lords decided in the highly publicised Gillick case (Gillick v West Norfolk and Wisbech Area Health Authority) in relation to contraceptives being given to a girl under the age of 16, that the wishes of a child of mature understanding should prevail and that other factors are irrelevant.

The Children Act itself does not go so far in bowing to a young person's wishes. Returning, however, to the checklist of factors that a British judge must take into consideration, 'the ascertainable wishes and feelings of the child (in the light of her age and understanding)' appears at the top of the list. The welfare of the child, as determined by the court, is of course paramount, but it is significant that the wishes of the child appear as item number one on the checklist.

How much weight is given to the child's wishes depends on her age and understanding. A psychologist acting for Kimberly's biological parents has said that she is not mature enough to make the decision. In fact, a 14-year-old determined enough to take a case through the courts probably does know her own mind. The cases of children 'divorcing' their parents, which started last September in the US and spread to the UK, were criticised by proponents of parents' rights who feared children might abuse the legal system on a whim.

The Children Act has a built- in safeguard against this: children do not have an automatic right to apply for court orders, they must first apply for leave from the High Court. This procedure will serve to weed out any trivial applications.

GIVEN the circumstances in Kimberly Mays' case, the girl's wishes should all but decide the matter. She just wants a normal stable family life with the father she has always lived with. Her emotional needs dictate that she should not have to see her biological parents because their visits leave her depressed; her school-work has suffered as a result. Most 14-year- olds know when they are happy and if their needs are not being met.

We must have sympathy for Ernest and Regina Twigg, Kimberly's biological parents, the victims of a hospital mix-up that came to light only when the girl they had raised died at the age of nine, and the post-mortem examination revealed she could not have been their natural daughter. This, however, does not change the fact that it is now in Kimberly's best interests to lead a stable home life, separate from them.

In similar circumstances, there is a range of orders that a judge in the UK could make under section 8 of the Children Act, including a 'prohibited steps order' that would prevent the birth parents from visiting their child. This would not absolve them of parental responsibility, but it would mean that they did not have rights over the child. This is the real change brought in by the Children Act, a shift in attitude, away from parents' rights to children's rights and parents' responsibility. It is to be hoped that judicial decisions will reflect this change.

The author is a lawyer who has specialised in childcare law.

(Photograph omitted)