The everyday cruelty of child protection law

Brother Ivo has very little time for Karl Marx, yet one of the few sound observations he made was to the effect that if the ordinary person  had to slaughter and butcher their own meat there would be many more vegetarians.

Most of us are pleased to live a sanitised life, away from such realities. We are pleased that someone else is willing to manage the sewers, attend the road accidents, look after the demented elderly, and prepare the dead for burial, but most of us are quietly pleased that much that might affront our sensibilities remains “out of sight out of mind”.

From time to time the realities of such necessary unpleasantries are brought to our attention and when we encounter these truths they usually come as a shock.

There is a public outcry when a story breaks of  the safeguarding systems of a care home breaking down;  we wring our hands when public service re-organisations  bring a story to light highlighting the difficult consequences of difficult decisions,  but it is only then that we allow such matters to enter our conscious thought. We normally prefer not to look or to ask.

In recent weeks, the world of Child Protection hit the news headlines again with the tragic story of an Italian lady whose mental health fragility resulted in the Court of Protection authorising a Caesarian section delivery of her baby and a separate Family Court concluding that the child was at risk of “significant harm” so that the child’s long term needs were best met by adoption.

The story acquired traction. There was much speculation and comment, some of it intelligent balanced and informed, much of it however was less so.

Brother Ivo does not intend to add to the commentary on the individual case, save to  point readers attention to the judgements respectively of Mr Justice Mostyn , who dealt with the application to permit the caesarian delivery  together with His Honour Judge Newton’s County Court judgment , relating to the care and adoption proceedings

If one wishes to have an in depth analysis of the issues, the excellent Head of Legal Blog, which gives both a blow by blow account of the history and an informed commentary upon the lengthy history which has been commended for its accuracy by one of the Queen’s Counselsengaged in the case.

There was one striking comment made upon that blog in relation to the decision to authorise the Caesarian. It came from a lady who herself suffered similar mental illness

She wrote touchingly

As a mother with bipolar disorder who has suffered from paranoid delusions I have been horrified by the coverage of this case. To go through labour while paranoid and psychotic, unable to understand either why you are in pain or that the people around you are trying to help, would quite literally be one of the most dreadful experiences that I can imagine, and if this woman was that ill a caesarian would absolutely be the only humane way to proceed.

There seems to be a general refusal, particularly in the liberal press and blogosphere, to accept that really serious mental illness and a consequent lack of capacity exists any more, a belief that everything can be done by consent and that anything else is merely prejudice against the mentally unwell. It’s an understandable backlash against the time when we were routinely denied our rights but it does those of us who occasionally really cannot make decisions for ourselves no favours. In this case it seems from the limited information supplied that the court was definitely the appropriate places for the issue to be raised and a decision to be made in light of medical advice.

Such honesty and informed opinion is what we need to hear when such issues are discussed in the public domain.

It is HH Judge Newton’s judgement which draws Brother Ivo’s attention.

In it,  the Judge effectively describes a typical case of this kind. This mother is scarcely different from many others whose family circumstances are brought before the Courts. If you have not seen such a document it should prove instructive as to how such matters are dealt with.

The Judge is kindly towards the mother – even as he takes terrible decisions for her life. Plainly she  was never a bad person or intentionally cruel. Her circumstances were carefully investigated and the judge accepted that the problems with which she battled would not be overcome quickly. It is a scenario played out in Courts up and down the land every day and yet most do most attract the kind of  interest the headline writers showed in this instance.

The mother had two other children, both of whom were cared for by her own mother, so she seemed to have an uphill task once the analysis of her shortcomings came to be undertaken remorselessly by the agents of State. As is frequently the case with a newborn, the Judge’s attention was  drawn to the importance to settle the baby’s future quickly,  so that the all important bonding process could  begin and a secure attachment be made as early as possible. Children who do not bond successfully are known to disproportionately become the failing parents of the next decades.

Faced with this, it was very hard for mother to secure the time she needed to attempt to prove herself. She said everything that she could. She was a sympathetic and honest witness. Many are.

What the case illustrates is the commonplace, everyday cruelty of most Child Protection cases.

It is so very easy for the public to stand on the side of the child against the brute. In those cases the social worker and police are seen as heroic, and woe betide any who is dilatory with the removal. Yet these are the minority of cases. They are the easy ones – the “no-brainers”.

What is altogether less comfortable, is contemplating the pain of the majority of these parents.

Some are mentally ill, some have learning disabilities, some suffer personality disorders arising out of similarly disrupted childhoods. Others may have fallen into addiction and bear some responsibility, yet the pain they suffer is no less real and raw, and the consequences seem wholly disproportionate to them. Often they know others in their locality in no better circumstances,  and unsurprisingly, they struggle to understand why this misfortune befell  them rather than the household down the road.

What is particularly distressing is that the timeframe for change in such families has been shortened.

As part of the perfectly proper concern to avoid decisions being excessively delayed, all cases are being monitored to ensure that they comply with an arbitrary protocol time limit of 26 weeks. Most cases must now be finalised that quickly. Few experts in addiction, or mental illness or learning disability will ever testify that deep seated problems can be adequately tested,  much less reliably resolved, within such short time frames. It can take three months to secure authorisation for the payment for a single drugs or alcohol test and several are needed.

Were our society braver or more honest, we should be telling all addicts, all those with vulnerability or inadequacy that we are cutting them adrift from hope whenever they stumble into the cross hairs of judgemental Social Services. We do not dare to do so,  for to do that would be painful to ourselves: it would reduce ourselves in our own liberal estimations.

So we will, in all probability , continue on this present path, not wishing to abandon hope for the failing family, nor yet being willing to  make a commitment to effect change for them.

The hurting of families, is like the butchering of our Sunday joint:  it is simply best not thought about, especially as we approach Christmas.

The short truth is that it is very easy to tear families apart. One is rarely criticised for making the obvious protective decision. It is, however, possible to effect change,  but that depends upon time being granted, resources being committed  and thorough and experienced advocates, social workers and experts working towards a common purpose.

None of this is deemed currently affordable.

There is an element of experiment in all such attempts, and a natural concern to shield the children from over optimistic or sentimental efforts to support the parents.

Before this current regime was introduced there were, nevertheless many stories of unlikely successes.

Brother Ivo knows of one young family whose mother had learning difficulties and where the father suffered intermittent mental illness which was sometimes medically controlled, but when not, resulted in worrying hallucinations. His dogged and aggressive legal team would not surrender early ( something which the present Legal Aid remuneration package discourages).

By chance, the family’s plight came to the notice of an 80 year old retired solicitor who met the children’s grandmother through their church. This Good Samaritan made an unexpected and game-changing offer. He would help Social Services by visiting  the family every morning on his way to communion to ensure that the children were up, breakfasted and ready for school, and return in the evening so that he could read to the children whilst mother cooked the evening meal. The mother was practically competent but needed monitoring especially if the father was having a bad day.

He could also check that father’s symptoms were not deteriorating.

Social Services had run out of patience and were resolved to bring an end to rehabilitative efforts .

The Judge was ready to give it “one last try”, against the advice of several of the “experts” all of whom were giving not unreasonable regard to the children’s need to be settles elsewhere sooner rather than later if the parents just could not cope.

The Judge was willing to test  the viability of the scheme way beyond the time frames  that will now be be permitted by the Ministry of Justice. Fewer Judges today will be willing to blot their copybooks by routinely ignoring the protocol time limits.

Importantly, during his visits, the elderly gentleman learned that, like many with his condition, the father over estimated his recovery when feeling well, and was relapsing because he did not always  take his medication as  directed. Once identified, the problem was successfully addressed: the children remained in their family even after their benefactor passed away. May God rest his soul.

Such outcomes cannot be prescribed. They arise almost providentially,  but the time was won by lawyers who would not throw in the towel and walk away from the  weak and the failing. No protocol can develop creative thought, such as accepted by this Judge, although the tick box culture can easily stifle it.

Such happy outcomes will become a rarer event as Child Protection is moved out of the discretion of wise and sensitive judges and onto an administrative conveyor belt where the protocol pathway will wrangle poor parents to an inevitable end result.

The bureaucrats have studied, costed, measured and dictated. They took everything into account except perhaps Exodus Ch 23 v 5

“You shall not pervert the justice due to your poor in his suit.