I have often written here about the extremely difficult decisions that our family court judges are regularly faced with. Here is another example, involving the question of whether a young child should or should not be looked after by his parents.
The point at the heart of the decision in FM (A Child) was also something that I have touched upon here previously: parenting can take various forms. When I wrote about it I was referring to different attitudes towards parenting, and the fact that it is not possible to say that one particular approach is better than any other – accordingly, a court will not favour the parenting views of one parent over the other. However, the point can be taken further: the actual standard of parenting can vary, but as long as it is not deemed to be inadequate then a court will not remove a child from its parents. This point was very well summarised by Mr Justice Hedley back in 2006, in a quotation repeated by Mr Justice Baker in his leading judgment in FM (A Child):
“…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”
In other words, it is not the job of the court to ensure that all children are brought up to a particular standard, only that the parenting should not be so inadequate that the child will suffer harm as a result. If the parenting is simply ‘defective’ (in the sense used by Mr Justice Hedley) then the court will not intervene.
The judge at first instance in FM (A Child) had to decide whether the parenting on offer from the child’s mother crossed that fine line between simply being defective and being inadequate, such that the child should live elsewhere.
The case concerned a child, ‘F’, born in August 2014. His mother had suffered from episodes of depression for which she had received treatment for much of her adult life. In 2012, she met and started a relationship with the father, a man with a long history of drug abuse who had recently come out of prison.
In October 2013, the mother’s father committed suicide. This had a devastating impact upon her. Shortly afterwards, she discovered she was pregnant and therefore stopped taking her anti-depressant medication, as a result of which her mental health deteriorated. In August 2015 she was admitted to a hospital mental health unit on a voluntary basis, at which point she apparently decided that she wanted her sister and brother in law, Mr and Mrs W, to look after her baby.
Two days after F was born the mother, Mr and Mrs W, and the local authority signed a document which recorded an agreement that F would be placed with Mr and Mrs W. Later that day, F was discharged from hospital and immediately went to live with Mr and Mrs W, with whom he has lived ever since.
A month later the mother, clearly then unwell and greatly distressed, contacted Mrs W to say that she had changed her mind and wanted to resume caring for F when her health had recovered. Concerned that the father was planning to take over care of the baby, Mr and Mrs W applied without notice to the parents for a child arrangements order and a prohibited steps order to prevent the parents removing the baby from their care. Those orders were granted, following which Mr and Mrs W gave notice of their intention to apply for a special guardianship order in respect of F.
Shortly after this the mother was admitted to a residential psychiatric unit, from which she was not finally discharged until January 2015. In April she applied for a child arrangements order, seeking an immediate increase in the contact she was having with F, with a view towards F’s ultimate placement in the care of her and the father. However, in May the father tested positive for drugs and shortly before the final hearing began in July the parents separated, so at that hearing the mother just sought orders facilitating the return of F to her care.
The court eventually gave its judgment in November, making a special guardianship order in favour of Mr and Mrs W. The mother appealed, on three grounds:
- That the special guardianship order was an unnecessary and disproportionate interference with the right to respect for family life to which F and the parents were entitled. A special guardianship order has, of course, been described as “a halfway house between a residence order and an adoption order”, whose “purpose is to provide permanence short of the legal separation involved in adoption.” However, Mr Justice Baker felt that the judge was entitled to make the order in the light of the mother’s mental condition, the father’s drug use and volatile character (the judge was concerned that the mother would find it hard to keep away from the father) and the history of extreme antipathy and hostility demonstrated by the parents towards Mr and Mrs W, who they said had ‘stolen’ F from them.
- That the judge had failed to examine the reality of the situation created by his order and confront the foreseeable risk that F would lose any relationship with his parents as a result of their attitude towards Mr and Mrs W. This one didn’t get any sympathy from Mr Justice Baker, who found that: “the real significance of the parents extreme hostility towards Mr and Mrs W is that it demonstrates that they find it difficult to identify and prioritise F’s needs, which manifestly require the parents to adopt a more measured and child-centred attitude to Mr and Mrs W and their intervention.”
- That the judge placed undue weight on the need to avoid delay when the evidence of one of the psychiatrists instructed to assess the mother was guardedly positive about the mother’s prognosis and when local support services may have been available. Here, Mr Justice Baker concluded that the judge’s concern about the impact of delay on the child’s welfare was an acknowledgment of the general principle in section 1(2) of the Children Act (that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child), and the particular welfare needs of F, at the vulnerable age of 14 months. Put simply, F needed a decision now. (The judge pointed out that if and when the parents are able to show that they have overcome their various difficulties which impinge upon their parenting capacity, an application can be made to discharge the special guardianship order.)
In summary, Mr Justice Baker felt that the judge was entitled to find that there were compelling reasons why F should not be brought up by his parents. He had recognised that whichever option he chose would carry risks for F, but the conclusions he had reached were plainly within his discretion. Accordingly, he would dismiss the appeal.
Lady Justice Sharp and Lord Justice McFarlane gave concurring judgments.
The full report of FM (A Child) can be read here.