In Re KD (A Minor) (Ward: Termination of Access): HL 1988

The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: ‘My Lords I do not, for my part, discern any conflict between the propositions laid down by your Lordships’ House in J. v C. and the pronouncements of the European Court of Human Rights in relation to the natural parent’s right of access to her child. Such conflict as exists, is, I think, semantic only and lies only in differing ways of giving expression to the single concept that the natural bond in the relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it. The word ‘right’ is used in a variety of different senses, both popular and jurisprudential . . Parenthood, in most civilised societies, is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where circumstances demand, by the courts or by the authorities upon whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child. That is the basis of the decision of your Lordships’ House in J. v C. [1970] A.C. 668 and I see nothing in R. v United Kingdom (Case 6/1986/104/152) which contradicts or casts any doubt upon that decision or which calls now for any re-appraisal of it by your Lordships. In particular the description of those familial rights and privileges enjoyed by parents in relation to their children as ‘fundamental’ or ‘basic’ does nothing, in my judgment, to clarify either the nature or the extent of the concept which it is sought to describe.’
Lord Templeman said: ‘Public authorities cannot improve on nature.’ and ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.’


Lord Oliver of Aylmerton, Lord Templeman


[1988] 1 All ER 577, [1988] 2 WLR 398, [1988] AC 806


England and Wales


CitedJ v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
CitedRe O’Hara 1900
(Ireland) FitzGibbon LJ SAID: ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent . .

Cited by:

CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
CitedCG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
CitedIn Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
CitedRe L (Care: Threshold Criteria) FD 2007
Toleration of Diverse Parenting Standards
Hedley J considered the meaning of ‘significant harm’: ‘What about the court’s approach . . to the issue of significant harm? In order to understand this concept and the range of harm that it’s intended to encompass, it is right to begin with issues . .
CitedRe MA and Others (Children) CA 31-Jul-2009
Children appealed against dismissal of their care proceedings on the basis that the threshold had not been reached. The parents resisted.
Held: It could not be said that the decision so plainly wrong that the judge’s conclusion on the facts . .
CitedPayne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
CitedRe EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
CitedRe EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 19 July 2022; Ref: scu.213652