Yesterday morning the President of the European Commission on Human Rights requested the British government not to send the boy back until they had considered the case. But the Attorney-General refused and was backed by the Court of Appeal. Allan Levy QC, appearing for the boy's foster mother, pointed out to the court that all previous requests from Strasbourg to the government had always been acceded to. This refusal set a precedent.
This has been one of the saddest and most shameful cases, flying in the face of the spirit of the 1989 Children Act. The boy was the illegitimate son of the Zulu housekeeper of Mrs S, an Afrikaaner woman. From the age of 18 months Mrs S fostered him, and when she moved to London the boy's natural mother signed a paper releasing him. Mrs S, now widowed, lives on social security in Maida Vale with her daughters and M, who is exceptionally bright, is due to take an assisted place at a top private school.
The boy's natural father turned up again. He and the boy's mother married and then claimed they always expected M to be sent back after five years. They have sold their story for sizeable sums to the South African press and South African airways flew them over for free for the case. It has become a cause celebre, stirring national pride and dark national memories of apartheid - an Afrikaaner white woman who has "stolen" her servant's boy.
This week the House of Lords refused to hear Mrs S's appeal. In court the child's wishes were represented by the Official Solicitor: "We made very clear the child's wishes to stay in Britain with Mrs S. It is unusual for a court to go against such firmly expressed wishes of a child," they say.
The Children Act demands that a child's welfare is paramount. It says a child's "views, wishes and feelings" should be taken very seriously. But the Courts claimed they were acting in the child's best interests in returning him to his Zulu roots. A child's own wishes are not necessarily the same as his long-term best interests. All through this case, the judges have been careful to clothe their words in the language of the Children Act, but have utterly ignored the principle at the heart of it.
The progress of this case has astonished the lawyers involved, all acting pro bono without payment. The distinguished child psychiatrist called in evidence and the Official Solicitor have all been ignored. The European Commission and possibly the Court will still hear the case and decide whether the human rights of the child and his foster mother have been breached.
The case raises a multitude of questions. Firstly, does a 10-year-old boy know what is best for him? In many ways, of course, he does not. He needs to be made to wash, brush his teeth, eat his greens, do his homework and go to bed at a reasonable hour. These things he will probably not do unless an adult keeps on his case.
These are, it must be said, small matters. On the big issues in his life he is almost always the only person who does know what should happen, and no one else can tell him. Only he knows whom he loves. Only he knows where he belongs. Who else can come along and tell him these things? The answer is, the Court of Appeal and the House of Lords. Thou shalt love whom we order you to love, they say. They order him to love biological parents he can no longer speak to and to "return" to a family he cannot remember living with. Only Dickens's pen could do justice to such callous disregard of a child's feelings.
Sadly, sometimes a child wants to live with a parent so deeply unsuitable that the courts are forced to intervene. Children do sometimes love parents too hopelessly deranged, depressed, wicked or subnormal to be safe to live with. But there was no question of Mrs S's suitability and the judges made a point of praising her. Bizarrely, the judges admitted that wrenching him away will be deeply and permanently damaging.
But racial roots, it seems, matter more than psychology. This modern mania for putting ethnic origin above all other emotional considerations has become a warped form of racism, defining children by their race and ignoring their other needs and wishes. This is atavistic socio-biological thinking - putting the animal back into the wild, the bird back in its nest. Maybe it would be better if the child had never been taken from his mother (though maybe not). But that is now history. He is a human, not an animal, and he knows where he belongs better than the judges.
Underlying this case is another atavism - treating children as the chattels of their biological parents. Although the judges were careful to avoid saying so, the only sense that can be made of their ruling is that the boy belongs to his birth parents and so it is best for him to be where he belongs.
One further piece of political correctness has infected the judiciary. The poor black family who can offer little to the boy - virtually no education or future - is set against a middle-class (albeit down on her luck) white woman in Maida Vale, who is good at getting her children into public schools. Rich London should not be allowed to steal the children of poor Africa. This child is paying the price of our guilt about apartheid and colonialism.
But if a child who wants to stay with a foster parent he loves, in a richer, safer place with every opportunity is not allowed to do so, how has his welfare been treated as "paramount"? Time and again the intent of the Children Act is cast aside in favour of other cult agendas. When will children's voices ever be heard above the din of adults' demands?Reuse content