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parentsA little over fifty-five years ago, the paediatrician and psychoanalyst Donald Winnicott introduced the concept of the “good enough” parent: the parent who is not perfect, but whose care is “good enough” to meet their child’s needs.

In the case of Re B (A Child), the Supreme Court had to consider what might be termed the “bad enough” parent: the parent who is sufficiently unsatisfactory, without causing any actual physical abuse or neglect, for the state to be justified in taking their child into care.

This case concerned a mother and father who between them had numerous convictions and a history of dishonesty, false complaints, and non-co-operation with the authorities – but whose care of and commitment to their child (“Amelia”) since her birth had been exemplary.  Can a parent’s character, and its likely impact on their child, justify a care order?  How bad is bad enough?

Factual background

The mother in this case had had an extremely difficult life.  She had been involved in a dysfunctional and traumatic relationship with her domineering step-father.  This resulted in 6 abortions, the first of which happened when she was only 15, and one child, with whom she had no contact.  She had several criminal convictions for offences of dishonesty.  She had been diagnosed as having somatisation disorder, a psychiatric illness in which the sufferer makes multiple complaints to medical professionals for which no physical explanation can be found.  She was also diagnosed with factitious disorder, in which the sufferer exaggerates or fabricates symptoms.

The father had a significant criminal record and had spent 15 years of his adult life in prison for offences including robbery, burglary, and violent crimes.

However, despite these unpromising circumstances, it was acknowledged that both parents’ relationship with Amelia had been extremely positive.  The trial judge found that they had “not put a foot wrong” during contact and had given her child-centred love and affection “in spades”.

Procedural background

The trial judge, Judge Cryan, found that the threshold conditions for making a care order were met.  These conditions are set out in section 31(2) of the Children Act 1989 and require the judge to be satisfied:

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not          made, not being what it would be reasonable to expect a parent to give to him; or

          (ii) the child’s being beyond parental control.

Judge Cryan held that there were risks that Amelia would suffer harm arising firstly from her mother’s somatisation and factitious disorders and secondly from both parents’ dishonesty.   A deciding factor for the judge was the parents’ non-compliant and obstructive attitude to social services.  It was held that in order to care for Amelia, they would have to abide by a programme of monitoring and support with which they would be incapable of complying.

The Court of Appeal, though clearly troubled by the case, dismissed the mother’s appeal.  It was found that Judge Cryan’s decision did not fall outside the “generous ambit within which reasonable disagreement is possible”.

Judgment of the Supreme Court

The Supreme Court also dismissed the mother’s appeal on a majority of 4:1 (Lady Hale dissenting).

Had the threshold been crossed?

It was held by all the justices (though very reluctantly by Lady Hale) that the judge had been right to find that the threshold had been crossed.

The following principles were established or confirmed:

  1. “Likelihood” means simply “a real possibility”, but a finding that such a possibility exists must be based on facts established on a balance of probabilities.
  2. It would not be helpful for the court to explain the meaning of “significant” harm.  However, the more significant the harm, the less likely its occurrence needs to be.
  3. Article 8 has no application in deciding whether or not the threshold has been crossed, as there is no interference with family life at this stage.
  4. In deciding whether or not the threshold has been crossed, the judge is not exercising a discretion but is making a “value judgment”, “appraisal”, or “evaluation”.
  5. The test to be applied by the appellate court in considering an appeal on this point is whether or not the judge’s decision is “wrong”, not whether the decision fell outside the ambit of a discretion.  The appellate court must have regard to the significant advantages enjoyed by a trial judge who has seen and heard live evidence.

Should a care order have been made?

It was found by the majority, Lady Hale dissenting, that the judge was right to make a care order.

The justices were all in agreement that:

  1. Article 8 is engaged at this stage of the determination.  The decision must be proportionate.
  2. For a decision to be proportionate, making the care order must be “necessary”: such an order should only be made where “nothing else will do”.

 However, the justices diverged on how an appellate court should approach the question of proportionality.  Lord Wilson, Lord Neuberger, and Lord Clarke held that the appellate court should not conduct a substantive reassessment of whether or not making the order was proportionate.  It should also not ask whether the decision fell outside the ambit of “reasonable disagreement” but simply: was the judge’s decision “wrong”?  Lord Kerr and Lady Hale, in contrast, stated that it was for the appellate court to decide for itself whether or not the decision to make a care order was proportionate; however, they did stress the importance of “giving due weight to the enormous benefit [the trial judge has had] of reading and hearing all the evidence” (205).

Comment

The opinions given by the majority in relation to proportionality are, perhaps, not as comprehensive as could have been desired. The learned justices appear to have diverged from the Denbigh and Miss Behavin’ approach (wherein the court must decide the issue of proportionality for itself)  but do not give a full explanation of why.  The only justice to address the issue is Lord Neuberger, who distinguishes Denbigh and Miss Behavin’ on the ground that they concern challenges to executive rather than judicial decisions.   However, as Lady Hale states, “it seems to me that if the court has the duty to assess the proportionality of the decisions of a board of school governors…it must a fortiori have the duty to assess the proportionality of the decisions of the trial judge in a care case”.

As Lady Hale highlighted in her dissenting opinion, this case brings into stark relief another difficult question.  When should the state take away a child, not because physical abuse or neglect is feared, but because the character of the parents is such that they cannot help but be deficient parents?  What was remarkable about this case is that, though the parents clearly had significant problems, their care of their daughter was held to be highly satisfactory.  As parents, they appeared to be competent; as people, apparently less so.

The decision made here is problematic for two reasons.

Firstly, it is based wholly on future harm.  The risks identified may never materialise.  Further, it is enough that such harm is “possible”; it need not even be “probable”.  It is not a perfect comparison, because the one deals with the past whilst the other deals with the future, but it is worth noting that we do not convict people of crimes unless we are “certain so that we are sure” that they have committed them: in contrast, we will take children away from their parents on the basis of a “real possibility”.

 Secondly, even if the harm identified does materialise, is it enough?  We have decided as a society that, as a general rule, it is more important for children to be brought up in their own families than to be brought up in “better” families.  Does the effect of the parents’ dishonesty and mother’s psychiatric illnesses justify removing Amelia permanently from their care?  As Hedley J observed in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063: “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”.