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The courts are not in the business of social engineering

The powerful judgment of the President of the Family Division Sir James Munby in Re A (A Child), handed down on Tuesday, has led to a number of headlines in various national media outlets. As it is a public law child care case, and it is now many years since I last did any child care work, I will leave it to those far more expert than me to pass comment upon the case. However, I believe that some of the President’s words do have general application to all children cases, including private law cases.

Briefly, Re A concerned a little boy who was born on 11 January 2014. Darlington Borough Council sought a care order and an order that he be placed for adoption. The boy’s father had wanted to look after him, but social workers considered that he was ‘immoral’, as he had had some involvement with the far-right group the English Defence League and, when aged 17, he had had sex with a 13-year-old girl, for which he accepted a police caution.

In a judgment that was highly critical of the local authority, the President said that neither they nor the court were guardians of morality. The applications were dismissed and it was ordered that the boy be returned to his father.

The particular part of the President’s judgment that I want to refer to is actually a quotation from His Honour Judge Jack in the earlier child care case North East Lincolnshire Council v G & L. I shall set out the quotation in full, with my own emphasis:

“I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.”

The President in Re A considered that if he were to remove the boy permanently from his father’s care then social engineering was exactly what he would be doing.

As I’ve said, I think this point is of general application to all cases which concern the welfare of children.

Many, if not most, families are far from perfect, and that applies especially when they have recently suffered the trauma of parental relationship breakdown. Save in exceptional cases, the courts must take those families as they are, warts and all.

The allegation that there is something not perfect about the household in which a child is living, or where it is proposed that they live, is almost ubiquitous in disputes over arrangements for children following the separation of their parents. The type of ‘imperfections’ listed by Judge Jack in the quotation above  are commonplace in private law cases just as they are in public law cases.

I well remember from when I was practising regularly coming across cases involving allegations of soft drug abuse, alcohol misuse, arguing in front of children and so on. The parties making the allegations more often than not failed to persuade the court that those ‘imperfections’ were sufficiently serious to deny the child a relationship with one of his or her parents.

We do not live in a perfect world, and the court does not expect us to do so. As long as the children involved are not exposed to serious harm, then their parents are taken as they are, along with their imperfections. The welfare of the child does not extend to the court trying to create some sort of ideal of familial perfection.

The judgment in Re A can be found here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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