Recently there was a story in the news about an Italian woman whose baby was put for adoption after a caesarean. Her child is now being adopted by a British couple despite her pleas to raise the child herself. The case has been condemned as extraordinary and totalitarian and an MP has even gone so far as to call the Essex Children’s Services ‘unaccountable and out of control’. The woman in question unfortunately suffered from mental health issues, and the view of social services and the Courts was ultimately that her health issues deemed her unable to raise her child.
During my time at Leeds University I studied child law, and orders with such extreme results were often the subject of debate amongst my peers. We would often spend seminars discussing Child Protection Orders and the difficulties that the law faces in relation to them. There are many orders at the courts disposal, and thus we would sometimes disagree on the appropriate order to be made in respect of a child who is at risk of harm, or indeed suffering harm. Some would choose the most extreme, reaching the conclusion that care proceedings should be initiated and others would suggest that such an order is not necessary under the present facts of the case. It became obvious that this is not a clear cut area of the law, and that it is fraught with controversy.
A few problems that the law has to deal with in relation to children protection orders are as follows:
Evidential problems; in care cases the judges are faced with the task of having to penetrate ‘ the fog of denials, evasions, lies and half truths which all too often descend’. In other words, social workers and the courts do not always know all the facts and thus must deal with the possibilities. It is also noticeable that even experts examining the same injuries that a child has incurred, can differ widely in their interpretation of them. So here lies a problem, a decision must be made as to what is best for the child despite the truth not being established. Ultimately this can lead to a more extreme order being made, when in actual fact, a less severe order would have been more appropriate, and vice versa.
Secondly, even if the facts are know, there is much controversy over how much suffering the child should face before it is suitable for the state to be able to intervene to protect the child. Many will have a differing view on what is harmful enough to constitute permanent removal from the parents. For example, does a child living in a dirty home, who is not fed correctly or washed, need to be removed from that environment or should the state simply offer support to the parents to improve their lifestyle? The issue here is should the state only intervene in the most serious cases so to protect the privacy of the family or are they justified in acting in order to prevent abuse. What is evident also is that the lines are blurred, what some will call neglect or abuse others may not view so seriously.
Finally, critics have argued that even where the facts are established, and abuse is proved, there is still much debate as to the correct response to it. Research has shown that there is a level of abuse of children in care, and in particular of those in children homes. Further, it has been argued that removing a child from an abusive family only to place him or her into an abusive situation in a children’s home is to heap harm upon him. Obviously this is not always the case, but nevertheless is another concern that the Courts must face when making decisions in relation to child protection.
In addition the issues mentioned above, after the Human Rights Act 1998 English and Welsh law must now start with a strong presumption that the state must respect the right to a private life (Article 8 of the ECHR). This means that in all cases involving care orders, the court must consider whether there any infringement of human rights will be justified. In spite of this, it would be wrong to assume that the Human Rights Act supports a non interventionist approach in child protection cases.
To conclude it is clear that the courts are faced with an extremely hard task in child protection cases. They have to decide what is best for the child and that is not always clear. The facts of the case can be distorted and a decision to remove a child from their home must be balanced against the detrimental effects of removing them from their family.
I have not read the case of the Italian lady fully, and thus cannot form a well-educated opinion on the judgement as of yet. What I am sure of however, is that it will remain a controversial decision consumed in differences of opinion.
Image by MestreechCity