Family Law

Since I wrote my last opinion piece in April 2013, I continue to practice in children law proceedings (both private and public) and read the article by Kitty Knowles in the Metro yesterday (2 December 2013) : ‘Social Services have a baby taken from mother's womb'.

While it is inappropriate to comment on that particular case without being aware of the full facts and circumstances, it raises a very serious issue for practitioners involved in care work when psychiatric and/or psychological concerns are raised against one or both parents.

The article in the Metro reports that this particular mother had been taken to a psychiatric ward after failing to take her medication and suffering a panic attack. The local authority then had concerns for the welfare of her unborn child.  After a period of 5 weeks, it is stated they forcibly sedated her and performed a caesarean section, placing the child with foster carers and refusing to return the baby to its mother due to their fears she may relapse. See the response from the local authority at http://www.essex.gov.uk/News/Pages/Essex-County-Council-responses-to-interest-in-story-headlined-Essex-removes-baby-from-mother.aspx

My discussion here centres around the attitude towards any mental health diagnosis, not with regards to the specific case mentioned above.

One would usually expect to see some Expert Reports commissioned during public law proceedings and it is the attitude of some professionals as to the lack of empathy in considering a particular diagnosis, with the effect of "writing off" of parents which is a growing concern in care proceedings.

I have vast experience of public law cases whereby following the receipt of an Expert report, with a diagnosis of either a Psychological/Psychiatric condition, that particular parent is very quickly written off as a possible carer by the Local Authority and other professionals involved in the case when there is clearly scope to consider a more holistic approach as to what support and care package could be provided to enable that parent to provide good enough parenting to the child subject to proceedings.

The recent judgments in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR (forthcoming) and Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, [2014] 1 FLR (forthcoming) have provided practitioners and the court with a much needed reminder that the premise of the Children Act 1989 is to afford children the opportunity to remain with their birth parents if it is at all safe to do so.

Further reminding us that if support is required to enable that parent to look after the child, a thorough analytical report is required setting out exactly what support is required, whether it can be provided and if not, why not.  A holistic approach is required in care proceedings, with thorough and in-depth planning so as to allow the court to reach decisions as to a child's long term care arrangements with a sound evidential basis.

All too often, professionals will read a psychological/psychiatric report and all too quickly assume its conclusions render that particular parent unable to provide good enough parenting to their child/children.  We should keep it at the forefront of our minds that there is no such thing as perfect parenting and the test is one of ‘good enough' parenting, which should be achievable with some support in place for particular parents that require it.

As an example, earlier this year, I had an expert report commissioned in a public law case which concluded both parents have personality disorders and the very nature of their particular disorders means they will struggle to deal with information from the local authority (and other professionals) if it is not presented to them in a particular way.

The expert recommended that parties acknowledge the diagnosis of the parents and ensure they communicate with them in an open and honest way, in order to achieve a good working relationship with them.  (It had also been a part of that report that there is clear evidence the parents are able to communicate with some professionals; those that speak to them in an honest way and so the presence of this particular personality disorder did not mean it was an unworkable situation).

Sadly, I did not see any other professional take those conclusions into account and saw an overwhelming attitude that there was no time to put in the extra support needed in terms of explaining things clearly to those parents - leading, inevitably to a poor relationship between the parents and local authority, in particular, who the parents considered would always make decisions and tell them about changes rather than engaging them in open communication and decision-making regarding their children, for whom they still held parental responsibility for - alongside the local authority.

The refreshing judgments coming from the Court of Appeal, such as Re B-S and Re G, are simply reminding practitioners of the basic point that every child deserves to live with his/her biological parent if it is safe to do so. Practitioners and other professionals dealing with care work are supposed to be involved in the careful planning for these vulnerable children and in writing off their parent(s) simply because a psychological issue has been identified is surely providing that child a disservice. A truly holistic approach requires all parties to challenge any linear care planning put forward by local authorities and for there to be, in my view, a better understanding of psychological issues and indeed an empathy towards those suffering personality disorders (for example), who will need more support than others to provide that good enough standard of parenting.

The Liberal Democrat MP John Hemming says he plans to raise the case discussed in the Metro in the Commons and I think that most certainly should be done.  He states that ‘[he worries] about the way these decisions about a person's mental capacity are being taken' and I too am concerned that unless there is a conscious effort by all involved in care proceedings to look beyond mental health issues, too many children will be stripped of the opportunity to live with their birth parents and that surely goes against the very premise of the Children Act 1989?    

Kirsty Richards is a Senior Family Solicitor at GT Stewart Solicitors in London.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.