Leading Article: A small step for a boy

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The Independent Online
'GIVE me more pocket money or I'll divorce you,' says the child, reaching slowly for the telephone. His mother hesitates. Then she thinks of the legal fees and meekly hands over the money. It's the cheaper option.

This is the nightmare now apparently afflicting some American parents as they contemplate the judgment in favour of Gregory Kingsley (now Sean Russ), a 12-year-old who sued for separation from his parents in order to be adopted by his foster family. It is the first case of its kind and therefore makes legal history. It had also been expected to enliven the election campaign by enabling Republican conservatives to claim it as further evidence of the destruction of the family, but Gregory's mother turned out to be too far from a role model to be used in that way.

On a practical level the case is less revolutionary than it seems. Gregory's mother had been unable to care for him. The foster family wanted to adopt him and Gregory was eager for them to do so. If the local authorities had been functioning properly they would probably have supported adoption. But they have been swamped by the rapid increase in the number of fostered children in the United States, which has now reached half a million, so Gregory had to fight his own battle, with more than a little help from his foster family. Fears that he may have opened the door to streams of frivolous cases are probably far-fetched because a juvenile court still had to give leave for the case to go forward, and the court could have overruled Gregory's application.

His action will, however, fuel the debate that is taking place in most developed countries over the trend towards giving children more rights. In Britain the trend was embodied in the Children Act of 1989 which says, among other things, that 'the court shall have regard in particular to the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)'.

A British boy in Gregory's position would probably achieve the same result in the end by a slightly different route, although he would need three years' residence with the foster family before adoption. Normally the social services would deal with his case, but technically he could take himself to a solicitor, who could then bring in the Official Solicitor. The only difference is that the British boy would need an adult to act for him until he had reached 16.

Any resolution of a case such as this is bound to require a compromise between the rights of the child and those of the natural parents. Which way the court leans depends on its assessment of many factors. Although the child's wishes and level of understanding are now rightly given greater weight than in the past they do not take absolute precedence, even in the United States. As in Britain, there is still a presumption that children are generally best looked after in their own families. A stronger mother than Gregory's might have won her case. The verdict is, therefore, more of a technical landmark than the harbinger of fundamental change.

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