UK – Legal Ruling Reaffirms Parental Rights

In the overwhelming majority of the cases that we inspected, the outcomes for the children and young people were poor.
Her Majesty’s Crown Prosecution Service Inspectorate, December 2012

Discussion about “the rights of the child” can have a hollow ring when one considers the numerous cases of physical and sexual abuse of looked-after children which have emerged in recent years. In such cases the rights of children were not merely disregarded but trampled upon.
Select Committee on Health, 1998

On February 17 of this year, Sir James Munby, President of The Family Division, handed down a decision that concerned the suitability of a father as a parent for his child, balanced against the quality of the evidence of his alleged unfitness as provided by the local child welfare authority.1

Sir Munby explains that the local authority’s case was that the child, described only by the pseudonym “A,” should not be placed with his father because “He lacks honesty with professionals; he minimises matters of importance; he is immature and lacks insight of issues of importance; his relationships with family members and his former partner are acrimonious and characterized by violence.”

Sir Munby notes further that, “The local authority has articulated numerous concerns in relation to the father. Some are relied upon as such. Others are relied upon in addition as demonstrating the father’s failure to work openly and honestly with the local authority and his unwillingness and inability to accept the concerns of the local authority.”2

He illustrated his legal reasoning by citing the Baroness Hale of Richmond, who in a 2014 ruling issued by the United Kingdom Supreme Court so eloquently explained:

the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.3

Sir Munby noted also with favor the ruling set forth in Y v United Kingdom, in which the high court explained:

family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.4

Much of the case appeared to hinge on the father’s having had some involvement with the English Defence League in 2013. The extent of his involvement, however, is unclear. The social worker argued that “the immoral nature of the values and beliefs of members of the EDL and the violence within the protests EDL members engage in is inappropriate and supports inflicting violence injury to innocent members of the Muslim heritage. . .”

A should reside within an environment that supports difference, equality and independence. He needs to be taught how to express his views systematically and in a socially acceptable way. A should not reside within an environment whereby violence is openly condoned, supported and practiced,” the social worker explained.

To the extent that I would agree with her, my agreement is limited strictly to her belief that people generally ought “appreciate this is the twenty first century, the world is a diverse place whereby all individuals should feel accepted, regardless of their ethnic background, race and origin.” That said, I most certainly do not condone separating children whose parents may be associated with politically incorrect groups. In any event, Judge Munby soundly rejected the social worker’s rationale, writing,

I can accept that the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.

“There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated,” Sir Munby wrote, citing two recent high court cases that arrived at similar conclusions.5

Britain’s Child Welfare System

Great Britain’s child welfare system has been the subject of increasing scrutiny for the last several years, as the rate of child removals continued to soar to record heights.

“For a long time now, thousands of British families of every class and background have been secretly torn apart by this country’s child protection system in one of the biggest scandals of our age,” writes Daily Mail journalist Sue Reid.

In her article of July 24, 2014, entitled “For years I fought against secret courts breaking up families. At last there’s hope,” Reid explains: “Children have been dragged off by the State into the care system and, despite the pleas of their parents, often given to adoptive families.”

The reason, Reid explains, is one that is central to the operation of the child protection system in every nation in which it exists:

This has been happening increasingly frequently in a process overseen by a network of Family Courts, which operate in secrecy in every town and city in the land, violating the principle of openness which has underpinned British justice for centuries.

Reid explains that as a result of the decisions of these secret courts, “as many as 12,000 children and babies are forcibly taken into care in England each year, the equivalent of 230 or so every single week.”

She notes also that children are removed on “the basis of flimsy accusations by social workers,” for reasons such as shouting at a teen, taking a child to the hospital too often, or because the mother has herself been in the foster care system, or perhaps suffered depression as a teenager.

As elsewhere, the family courts have stacked the odds against families by imposing gag orders, or compelling silence over the course of a case outside of the courtroom under threat of imprisonment for contempt.

Last year, Lord Justice Munby issued what was hailed as a landmark decision, potentially lifting the veil of confidentiality on as many as 95,000 family court hearings per year. In his ruling in Re J (A Child), Justice Munby explained:

I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.6

Lord Justice Munby, senior family judge in England and Wales.

The case involved a family that had posted a video tape of their child’s removal on the internet. They named the responsible social worker, and spoke out freely against what they perceived as a tremendous injustice. As a result, the judge presiding over the case imposed a gag order that was to remain in effect until the year 2030. The order extended itself so far as to prohibit the press from seeking out the family for comment until the order expired.

In his ruling, Justice Munby concluded that, “We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.”

In following up on recent revelations in Australia involving long-standing policies of forced or coerced adoptions, Christopher Booker of The Telegraph wrote a story in March of last year bearing the headline Australia’s scandal of forced adoption is happening here in Britain. Australia’s Prime Minister Julia Gillard had by then delivered a national apology for decades of forced adoptions in her nation, with no such apology on the horizon in the United Kingdom. As Booker explained:

For some years now a handful of journalists, including Camilla Cavendish on The Times, Sue Reid of the Daily Mail and several writers on The Sunday Telegraph, including me, have been trying against all the odds to lift a tiny corner of the veil of secrecy that hides what is routinely going on in our social-service departments and family courts.

Breaking Records

According to Booker’s figures, the removal rates are indeed astounding. “The latest figures show that applications to take children from their parents into care continue to break all records – nearly 1,000 a month in England and Wales alone – and far too many of these child-snatchings have no more rational or humane justification than those for which Ms Gillard was belatedly apologising.”

Mounting resistance continues. The Boston Herald reported in April of 2013 the story of one woman who “is battling what she believes is the forced adoption of her two sons,” having taken her appeal to the Royal Courts of Justice. She is set to “contest the process which has led to her children being removed from her care,” the paper reports, adding that she “has been battling the process at every stage” of the proceedings.”

In September 2012, the same paper bore a headline reading “Boston mum to speak out at ‘forced adoption’ conference.” The mother is reported to have been “fighting to see her two young sons” and as “preparing to speak out against the issue of forced adoption at a conference” during the following week. The event, entitled “Stop Child Stealing by the State,” Scheduled to attend were a number of people from different organizations, including UK Column and The British Constitutional Group, health professionals, care leavers, and John Hemming MP.

Hemming has long been an outspoken critic of Britain’s child removal policies. He says that he has received significant support from several nations calling for reform of his nation’s child removal policies, however he continues to receive precious little support for reform in his own country. He is a frequent guest at pro-family rallies. On March 26, 2013, he addressed the House of Commons expressing his support for the support group Justice for Families, effectively encapsulating the roles of the expert witnesses, the social workers, child welfare bureaucrats, and the other players in the lucrative child protection industry.

Scant Attention to Parents

A report issued by England’s Select Committee on Adoption Legislation of March 6, 2013, pays scant attention to the issue of forced or coerced adoptions, saying that the government “wishes to increase the number of children being adopted; we agree that there is the potential for more children to benefit from adoption which is in many ways unique in its benefits.”

The report mentions natural parents only in passing in its introduction, saying: “We also believe that early intensive work with birth parents where there is capacity to change has the potential to enable children to live safely within their birth families and to reduce the number of children in care. We urge the Government not to undermine the potential benefit of preventative programmes by focusing on adoption at the expense of early intervention.”

Foster Care Outcomes

iA British study of children in care or custody released in December 2012 by Her Majesty’s Crown Prosecution Service Inspectorate explains: “the overall outcomes and future life chances for these children and young people are extremely poor. The fact that they were away from their home areas and were moved frequently militated against their chances of rehabilitation. The fact of being looked after could escalate a child into the criminal justice system.”

The study continues on to explain: “In the overwhelming majority of the cases that we inspected, the outcomes for the children and young people were poor. Children and young people were not always protected. Some had been assaulted or sexually exploited; some had themselves assaulted or exploited other children and young people. They had often been criminalised while in care for offences that would probably not have gone to court if they had been living at home. A significant number had gone missing at some point, some a substantial number of times. Their education had suffered and few were well prepared or supported for transition to adulthood.”

Another issue currently gaining attention was expressed as being of “particular concern” to the British Select Committee on Health as long ago as during its 1997-98 Session. As explained in its Second Report, that would be “the issue of child prostitution.”

The Committee received memoranda on the subject that contained “thoughtfully written and harrowing accounts of how children, many of them from a care background, are lured into a life of prostitution from which they find it enormously difficult to extricate themselves.”

The Commission continued on to explain: “The criminal justice system at present offers very little assistance to such children. The law treats children working in prostitution as criminals rather than victims.” What is made clear throughout the report is that foster care graduates are indeed victims; and in many cases they are victims of the very system that swept in to help them by substituting state-run institutions for their natural families, subsequently tossing them out onto the streets to fend for themselves.

The Commission summarized by saying: “Discussion about ‘the rights of the child’ can have a hollow ring when one considers the numerous cases of physical and sexual abuse of looked-after children which have emerged in recent years. In such cases the rights of children were not merely disregarded but trampled upon.”

The perils of the foster care system have long been documented, and all nations ought move to curtail the inappropriate removal of children from their homes to insulate them against the potential harms that come with out of home care. Sir James Munby’s recent ruling is certainly one crucial step in the right direction. The obvious question is one of whether the judges among the local authorities will bother to pay heed to it.

1. The case, In the matter of A (A Child) [2015] EWFC 11, in many respects parallels a ruling handed down by the United States Supreme Court in Stanley v Illinois 405 US 645 (1972), in which the Supreme Court ruled that, “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and protection. The integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, and the 9th Amendment.”

2. This is a recurrent theme in child welfare cases. Indeed, nearly anyone who has had an adversarial experience with child welfare caseworkers will attest to having been accused of “failing to cooperate” with the very people who they perceive as trying to tear their family asunder. The lack of cooperation during the early stages of an investigation may itself trigger a court filing. A research report published by the by the School of Law, University of Bristol, in 2011 explains “while a parent’s refusal to co-operate may have triggered the application, for some this is a wake-up call whereby, typically through the advice of their solicitor, a parent may finally decide to cooperate – thus presenting a different situation to that on which the application was based.” Pearce, J. & Masson, J. with Bader, K. (2011) Just Following Instructions? The representation of parents in care proceedings, University of Bristol Law School. A booklet for parents prepared by the New Mexico Supreme Court in cooperation with the U.S. Department of Health and Human Services explains: “You need to cooperate with your treatment plan because it spells out what is best for you and your child. If you don’t cooperate, you could be held in Contempt of Court and you may have to pay a fine, spend time in jail, or both. In addition, it could take longer for your child to be returned to you. In fact, if you don’t cooperate, you could even lose your rights to your child.” Shaening And Associates, Inc. and the New Mexico Supreme Court’s Court Improvement Project Task Force (2007) A Handbook for Parents and Guardians in Child Abuse & Neglect Cases. See also Katherine C. Pearson, 1998. Cooperate Or We’ll Take Your Child: The Parents’ Fictional Voluntary Separation Decision And A Proposal For Change. 65 Tenn. L. Rev. 835.

3. In the matter of B (a Child)(FC) [2013] UKSC 33.

4. In the case of Y.C. v. the United Kingdom 55 EHRR 33, [2012]. (EHRR refers to the European Court of Human Rights).

5. These cases would be Re W (Children) [2014] EWCA Civ 1065 (“I suspect that the reference to the ‘Agreement’ being ‘used in court as evidence if needed’ can only have been intended to have the effect of warning the mother that if she did not ‘toe the line’ the ‘Agreement’ would be used against her in some way in any proceedings that ensued”), and the recent decision in Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam) (“It is evident to me that neither the social workers, nor the senior managers at Northampton Children’s Services Department had DS’s welfare best interests at the forefront of their minds. Worse still they did nothing to promote them. Their chaotic approach to this young baby’s care and future life was dismal”).

6. Re J (A Child) [2013] EWHC 2694 (Fam). See also Justice Munby’s ruling in Re X; London Borough of Barnet v Y and X, [2006] EWCC 1 (Fam). (“In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in knowing how the family courts exercise their care jurisdiction”). In the United States, termination of parental rights has been generally accepted as the civil equivalent of the death penalty. See Matter of Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759 (2006); Drury v. Lang. (1989). 105 Nev. 430, 776 P.2d 843 (“Because termination of a parent’s rights to her child is tantamount to imposition of a civil death penalty, we have previously declared that ‘the degree and duration of parental fault or incapacity necessary to establish jurisdictional grounds for termination is greater than that required for other forms of judicial intervention'”). Of more recent vintage, see In re Parental Rights as to A.L. 130 Nev., Advance Opinion 9 (November 13, 2014) (overturning termination, noting, “Because the termination of parental rights is an exercise of awesome power that is tantamount to imposition of a civil death penalty, a district court’s order terminating parental rights is subject to close scrutiny”).