Orphans – are some of them prejudiced by the Children Act 1989? Can this be remedied?

James Dove Harcourt Chambers
Christopher Miller Fourteen
David Sharp Fourteen

If you are unlucky enough to be an orphan you may be unlucky enough to have no other family member or friend willing or able to take parental responsibility for you. This article explores a current lacuna in our law which means that the state is unable to assume parental responsibility for such an orphan unless the s 31(2) CA 1989 threshold criteria are met. This was not the situation prior to the the CA 1989 and it would appear that this small but very vulnerable element in society has been left unprotected. This article explores what can be done under the current law whether or not this perceived lacuna can be filled with a purposive re-interpretation of the word ‘individual’ in s 5 of the CA 1989 (in light of the advent of the HRA 1998) or if the only solution is for parliament to amend the Children Act 1989. We suggest a return to a legal framework whereby the state is able to become such an orphan’s guardian without the need for threshold...

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