Sex offenders should not automatically be banned from adopting, fostering or working with children, according to new research which also backs government plans to relax strict vetting procedures introduced after the Soham murders.
The report, by Helen Reece, a family law expert at the London School of Economics and Political Science, is published in he latest edition of Child and Family Law Quarterly. It points out that co-habiting couples are much more likely to split up than married couples, with potentially harmful emotional consequences for children, yet they are not banned from adopting and fostering.
Ms Reece, a barrister and leading expert in her field, argues that strict regulations surrounding sex offenders adopting or fostering children should be relaxed to enable cases to be judged on their individual merits. A blanket ban, she argues, contravenes Article 14 of the European Convention for the Protection of Human Rights and therefore the government could be open to legal challenge if it does not recognise this.
She cites the case of grandparents who were banned from fostering their grandchildren because the grandfather was a convicted sex offender. He had a conviction for unlawful sexual intercourse with a 15-year-old girl, an offence that he had committed 36 years previously at the age of 29. The children’s parents were unable to look after them and they were already living with their grandparents when the decision was made following the introduction of new regulations in 1997. This was upheld by the High Court in 1999.
Ms Reece says that Parliament has already recognised that some sex offenders are suitable to look after children. This recognition has so far only applied to sex offenders who are related to the children or are pre-existing foster carers. Ms Reece argues that there is no reason why all sex offenders should not be considered as potentially suitable to adopt or foster children, or work with them.
She explains that the Vetting and Barring Scheme and other legislative measures single out sex offenders for unfair special treatment and destroy the principle that a prisoner pays his debt by serving his sentence before re-entering society on equal terms.
She says: "Sex offenders shouldn’t all be tarred with the same brush.People need to be carefully screened for adoption and fostering, but each case should be taken on its merits. There shouldn’t be blanket rules. What somebody has done before is not necessarily what he or she will do again. When someone has served a sentence, as far as you can, you should treat them the same as anyone else.
"The case of the grandfather is a great example because the couple clearly were the best people to look after those children because the parents were unable to do so and everyone connected with the case was happy with the arrangement. It’s wrong what he did, but it doesn’t mean he’s going to be a danger to his grandchildren."
Ms Reece notes that sex offenders have relatively low reconviction rates compared to other types of offenders. Three-quarters of sex offenders are never reconvicted. Despite growing public concern over paedophilia, the numbers of child sex murders are very low and have remained virtually unchanged for 40 years.
She explains how cohabiting couples are more likely to separate than married couples, with sometimes equally harmful consequences to children as the "sexually tinted touches" of a sex offender.
In 2008, the House of Lords (in a case known as Re P) 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. The case emanated from Northern Ireland where a heterosexual couple, who had been living together for several years, were deemed ineligible to adopt because they were unmarried. The Lords ruled that while the state was entitled to take the view that it is generally better for children to be brought up by married couples, the prohibition was ‘based upon a straightforward fallacy, namely, that a reasonable generalisation can be turned into an irrebuttable presumption for individual cases.’
Ms Reece argues that the reasoning in that case applies to sex offenders prevented from adopting or fostering under Vetting and Barring schemes because adoption law requires the court to consider the best interests of the child on a case-by-case basis.
Ms Reece says: "If we believe that blanket bans are an effective and legitimate means to protect children then we should no more allow cohabiting couples to adopt or foster than convicted sex offenders."
Ms Reece backs government plans to radically reform the Vetting and Barring Scheme, saying: "It contradicts human rights legislation and is therefore challengeable. I agree with this government that it should be brought back to commonsense levels."
The controversial scheme was created by the Safeguarding Vulnerable Groups Act, passed in 2006 as a result of the Soham murders in 2002, when the schoolgirls Jessica Chapman and Holly Wells were murdered by Ian Huntley, a school caretaker. Home Secretary Theresa May halted the scheme in June, following heavy criticism that it was overly bureaucratic and would deter volunteers.
It was also argued that the scheme was based on the premise that everyone is a potential risk to children and must therefore be vetted. Ministers are now keen to reverse that notion and develop a system where no one should be deemed a danger to children unless there is very strong evidence that they are. Final recommendations will be announced early next year.
Earlier this month, the High Court ruled in favour of a challenge by the Royal College of Nursing to the lawfulness of the automatic barring element of the Vetting and Barring Scheme.
NOTES TO EDITORS
Helen Reece is available for interview and can be contacted on 0207 955 7239 or 07940 889411
For more information about Helen Reece, please go to: http://www.lse.ac.uk/collections/law/staff/helen-reece.htm
For a copy of the article, please email firstname.lastname@example.org