Public Law Children Issues
The decision on where the children should live is made by reference to the principle – ‘The children’s interests are paramount’. In determining what this means, the Courts refer to the ‘Check list’ – The list of factors specified in Section 1(3) of the Children Act 1989.
This includes a ‘requirement’ to consider all the adults that may be involved in caring for the children.
1) The Balance of Harm Test
In private law cases, as has been outlined above, the Court should consider (at least) both parents and their respective good and bad points. With whom would the children be ‘better off’ – the balance of harm test. If the system were not institutionally anti-male, there would presumably be around 50% of Residence Orders for each parent, or ideally a majority of Shared Residence Orders. In fact less than 1% of cases result in a Shared Residence Order. Around 80-90% of cases result in a Residence Order for the mother. So much for a fair system! One of the problems intrinsic in this result is the fact that the Courts do not look in equal detail at both parents. They normally focus entirely on the negative characteristics of the father and have a presumption that the mother is ‘perfect’. Whilst this is reflective of the media and society in general, it undermines the chance of a fair hearing and it is no surprise that the results are also distorted.
In public law cases, the State in the form of the Local Authority Social Services Department (SS for short) is attempting to ‘protect the best interests of the children’ by taking the children away from one or both of their natural parents and looking after them in the ‘care’ system. The Court is meant to consider the checklist, as with private law cases. However, this time they are comparing the ‘real’ parents with their perceived faults and a ‘mythical’ perfect foster or adoptive parent, who has no faults, does not appear at the hearing and probably has not even been chosen yet by the SS! This uneven balance means that it is extremely rare for Court action by the SS to result in anything other than the Order that the SS are demanding. This is entirely unfair.
2) Outcomes
It is obvious to anybody outside the system that when considering ‘the best interests of the children’, what matters is the ‘outcome’. In other words, which approach is more likely to result in the children growing up to be law-abiding, contributing, well-balanced, healthy, happy adult members of society?
There is a great deal of evidence to support the argument that children growing up largely or completely in the ‘care’ system are more likely to be in prison, commit suicide, suffer from mental health problems, have difficulty in getting employment and other negatives in society. The ‘outcomes’ for children taken into ‘care’ are largely negative. This should be taken into account when considering whether or not to take the children away from their natural parents. Whilst it is often the case that these parents are clearly ‘not very good’, it is more likely that they were badly parented themselves. They are most likely to be single mothers, for whom their children are already hugely disadvantaged by having lost half of their role models in not having a father to help them. Rather than attempting to improve their outcomes by education, support, therapy, or even reuniting them with their fathers, the SS would rather dump them in the ‘care’ system and forget them. They cease to be that Department’s problem at that point.
3) Anti-male discrimination
Whilst the above is bad enough, the treatment of the separated dad in the ‘care’ proceedings is unbelievably discriminatory. Unmarried fathers have little or no rights to be involved in the proceedings. If the father does not have Parental Responsibility (PR), the SS only have to make a token effort to locate him prior to the proceedings starting. After that they can ignore him completely.
If the father has PR, then he needs to be ‘consulted’. However, the SS do not believe that the father’s role is important, relevant or serious. They place little or no value in an on-going relationship between the father and child. When allegations are made by the child against the father, the SS do not investigate the truth of these allegations, they assume that they must be true and act accordingly. The father is then automatically excluded from the house and, if he is lucky, allowed fully supervised contact with the children in a contact centre for a couple of hours per month. The father is then studied closely in his interactions with the children and any suspicious actions, comments or behaviour reported negatively. In one case where this happened, the SS could see no point in continuing the fully-supervised contact in a contact centre if the only purpose was to ‘maintain a relationship between the child and her father’.
If the mother and father were still in a relationship prior to the allegations, the SS will then put pressure on the mother to end her relationship with the father and to support their calls for a zero contact order with the children. If the mother refuses to believe the child and instead tries to support her partner, the SS will give her a choice – ‘dump the man or your children will be taken into care’. In one case that repeated over many years, the mother chose the father nine times and as a result nine children were taken into care!
If she agrees to end the relationship, the SS will not believe this to be the case. They will require her to sign a ‘parental agreement’ (PA) excluding any contact between her and the father. A breach of the PA will result in further Court action to remove the children.
In order to try and ‘catch her out’, the PA will include the ‘right’ of the SS to call on her randomly day or night without warning. The SS may employ a private detective to follow her and to report back on any men she has contact with.
She will be required to attend courses in ‘believing your child’s allegations’ and ‘identifying risky adults in future relationships’. She will be ‘persuaded’ to attend classes with organisations like ‘Women’s Aid’ and treated as a victim of domestic violence.
In most of these cases, the Police will be involved and the father will be named in the local press at the beginning of the investigation! The vast majority of these allegations prove to be false but the damage has been done. In most cases, the police will decide that there is insufficient evidence to have any reasonable chance of a conviction. This is a very low threshold. When deciding on who to believe, in the family Courts the ‘balance of probability’ is the test. Is it more likely than not that this happened? I would argue that the test is similar. If the Police do not believe that the allegations have sufficient merit even to charge the father, why do the family Courts and the SS automatically assume that the allegations are true without even making any further investigation? This ‘presumption of guilt’ is extremely damaging and deeply discriminatory.
In Re H and R (Child Sexual abuse: Standard of Proof) [1996] 1 FLR 80, the Court stated that the more serious the allegations, the less likely it is that the event occurred and therefore the stronger the evidence needed. Unfortunately, this is proposed but not actually carried out in practice.
In another case, the mother had five children by four different fathers and other relationships as well. Many of the men in her life had been prosecuted for crimes against children when they were little more than children themselves and in any case 15-20 years earlier. This ‘history’ (i.e. one event) was used to ‘justify’ the SS in requiring the mother to end her relationships with these men and prevent them from having any contact with their children. There appears to be no ‘time limit’ beyond which a past conviction for anything relating to children can ever be said to be ‘spent’.
In another case, the SS obtained an ex-parte Order (in other words, only the SS were present) requiring the baby to be handed over immediately on birth as the father was, in their view, a danger to the child. The mother had to stay in hospital until this issue could be resolved. She had to agree to go into a ‘women’s refuge’ and sign a parental agreement banning any contact with the father to be allowed to leave hospital with her baby.
Summary
What about the human rights perspective? If the SS take a child from a family, it is clearly an interference in the family life of everyone concerned and hence Article 8 is engaged.
In Z and others v UK [2001] 2 FLR 612 (European Court of Human Rights case EctHR), the policy that the SS does not owe a duty of care to protect the children (X Minors v Bedfordshire CC [1995] 2 FLR 276) was challenged and found to be unfair. The Court held that Article 3 (cruel and inhumane treatment) was breached and awarded damages to the children.
There is a tiny glimmer of hope. In TP and KM v UK [2001] 2 FLR 549 (ECtHR), the SS were criticised for removing children from the care of their mother on the basis of an allegation which was not properly investigated and turned out to be erroneous. Again, damages were awarded to the mother.
When a mother appealed over the amount of contact she had with a child taken into care, she submitted that contact was a ‘parental right’ and not a child’s right. Lord Oliver said it would not be inappropriate to describe a parent’s claim to contact as a ‘right’. It was also a normal assumption that a child will benefit from continuing contact with both parents ; ‘But both the ‘right’ and the assumption will always be displaced if the interests of the child dictate otherwise.
In Dawson v Wearmouth [1999] 1 FLR 1167 the Court stated ‘It is submitted that the father’s rights under Article 8 are infringed. There is no basis for this submission. The present case is concerned with the welfare of the child not with the rights of the father. There is nothing in the Convention which requires the courts of this country to act otherwise than in the interests of the child’.
In other words, in this country, fathers have absolutely no rights whatsoever!
Tags: children, Discrimiantion, father, gender, human rights, mother, parents, public law, Social Services
