Posted on | June 10, 2013 | 30 Comments
[Update from Lucy : Today judgment in this case was handed down (see press summary). The parents' appeal was dismissed. Some comments which were held back pending judgment have now been published.]
On Wednesday, the Supreme Court will give judgment In the matter of B (a Child).
It will be less than four months since Lady Hale observed,
It is some indication of the importance of the issues that the apparently simple words [of the legal threshold for the making of a care order for a child] have been considered by the House of Lords and the Supreme Court in no less than six cases… [ J (Children), Re  UKSC 9 (20 February 2013) at paragraph 3]
This will be the seventh. And possibly the most important. The Supreme Court is once again considering when the State can remove children from their families. A number of the earlier cases have dealt with issues around the nature and burden of proof, problems arising from the fact that unlike the criminal courts, we are dealing with protecting from future harm, rather than punishing for past harm. Unquestionably important, but dry.
This case concerns a child removed at birth from parents who
“have “a warm, loving and appropriate relationship with their child.” For two years, five days a week they “have not been seen to put a foot wrong in their direct dealings with their child”.” [paragraph 142 of the judgment under appeal]
The child was not only removed at birth, but the order under appeal paved the way for permanent removal and placement for adoption in a case which (again in the words of the judgment under appeal)
illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk. [paragraph 150]
As I have pointed out elsewhere, the Children Act has been around for a little over two decades, and the history of its implementation can be seen as an Act in two parts. There is a debate about two models of state intervention in family life, broadly coined as “Family Preservation versus Child Rescue”. The former of these dominated policy in the earlier years of the Children Act but, without the legislation itself having changed, the latter has dominated the later years.
The rise of the child rescue model has been prompted by the public reaction to a number of horrific (and, it should be pointed out, criminal) abuses of children, most notoriously Victoria Climbié and Peter Connolly. Their stories are frankly so horrific that it would be astonishing if the public reaction were not, “this must never happen again”. So, shored up by that public reaction, the pendulum swung.
I am not sure how many people actually have the long view over time, or the wider view internationally. Those with the longer view over time will realise that our move towards a greater propensity to remove children does not represent the inexorable march of progress towards a better future, but merely the swing of a pendulum. The next Orkney Scandal, the next Cleveland scandal, maybe even the clamour of the voices of children being removed, and society may be outraged that the pendulum has swung too far, and the policy pressure will be towards family preservation. Those with a wider view internationally will be aware that the United Kingdom in its focus on the removal of children has developed a model that is at odds with that in much of Europe.
And so to the forthcoming judgment and its importance. As the Supreme Court website notes, human rights issues have been raised in this case in stark form:
“The first ECHR reason is the dichotomy which exists between the EU jurisprudence, which see the reception of a child into public care as a temporary measure aimed at the provision of services and the UK approach which is while understandably wishing to avoid delay in decisions for children nevertheless to move very quickly to applications for adoption often at the expense of analysing the true risks to children and balancing them in a way which might avoid such a permanent separation…”
Or to put it another way, it is alleged in the case that we are at odds with both the European Convention on Human Rights, and with our European neighbours in our current focus on child rescue.
The other point of significance that stands out for me requires a little delving into the facts of the case. Not too much: once again, the summary on the Supreme Court’s website is enough:
The grounds on which the [care] order was sought were principally that her mother suffered from a psychiatric condition that led her to seek unnecessary medical treatment; that both her parents exhibited a dishonest approach when interacting with care personnel and other professionals; and that it was not appropriate for her father to care for her of his own accord. It was asserted that A was at risk of harm in terms of her emotional and social development and also due to the risk she would be presented for unnecessary medical treatment…
From which, I flag up:
Unlike the horrific tragedies that pushed our policy towards child rescue, this is not self-evidently a case in which criminal harm to a child arises. Much of the harm here is said to arise as a result of the problems in the relationship between the parents and the professionals with whom they would have to deal. Even if there were crimes, they would not be the kind of horrific crimes involving abuse, degradation and ultimately murder that quite understandably excite public outrage. Therefore, a policy push that responded to one kind of problem is now resulting in intervention in quite a different kind of problem.
The case also raises in stark form the significance of harm. Again, I have recently had cause to comment that the Children Act defines harm, but not significant harm. That was in the context of the government having withdrawn the guidance on significant harm that had been developed, leaving a vacuum in its place. The government would argue, I think, that these matters are best left to the judgment of professionals. This case reminds us that the judgment of professionals is going to have to be subject to the judgment of the courts.
So why the headline, “trepidation and hope”?
Well, I have trepidation first because judges are not immune to social and policy pressures. In two other areas involving my work at the interface between social work and the law, the Supreme Court has issued judgments that seem depressingly constrained by contemporary social policy pressures (I am referring to Macdonald on adult social care and SL v Westminster on social care for migrants).
I have trepidation secondly because in fairness to those same judges, they will be conscious that their judgments are susceptible to being overruled by legislation. Judges are constrained by the law they currently have to apply. In this case, the legislation is two decades old, the policy pendulum has swung, and the current government is no lover of human rights at the best of times…
And I have trepidation thirdly because I have to admit that I can see all to easily how the Supreme Court could reject the appeal if it chose: focusing on the “real possibility” test for future harm; interpreting the word “significant” as containing only a minimal gloss on the word “harm”; or even retreating behind the barrier of whether the decision is sufficiently wrong for the court to interfere.
All of that trepidation reflects this: I want the parents to succeed. I have no knowledge of them, or what I would think if I were to meet them. But I want them to succeed on the fundamental issues that are raised about when harm is significant, and about our predilection for early permanent removal of children who have never been harmed by their parents.
And I have hope. I have hope because I know the heights to which Lady Hale can rise to overcome the problem of her judgments being blandly and unmemorably named after the second letter of the alphabet:
Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.
(Baroness Hale of Richmond in B (Children), Re  UKHL 35 (11 June 2008))