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Supreme Court to give judgment on emotional harm case on 12th June

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 https://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”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. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. stella macleod aka toni macleod

    about time !
    funnily enough i posted this exact case and questioned the delay in delivery of judgement earlier today, i think perhaps it may have caused a divide. This is the case i have been much awaiting given that the J children judgement doesnt technically solve the issues we were hoping given that, if you have had the alleged facts proven you are a risk of emotional harm despite that being in a previous case against you, you cant use it. My case and many others are simply a risk of future emotional harm. In regards to the above point you havent seen so many solely relied upon emotional harm cases i can provide an extremely long list of them unfortunately. xx

  2. forcedadoption

    I would go further than saying that most parents coming to me are emotional harm cases.When babies are removed at birth most of those cases that come to me do not of course involve actual emotional harm ;just the RISK of it !How traumatic can it be for both mother and baby to be separated immediately after birth and then for the baby to be given for adoption to strangers so that the mother will probably never know from that moment on whether her child is alive or dead.All on the supposition of a very well paid expert (in theory jointly chosen but in practice a “regular attender at such courts” and selected by the local authority)
    A life sentence for (in most cases) non addictive mothers that have committed no crime ! I usually verify this by reading the local authority case as portrayed in their position statement as presented to the court.Punishment without crime is wicked and should not form part of any justice system ;let alone one that is British!

    • Well said that man, I can confirm every word that Ian states. Parents lose their kids based upon the crystal ball effect of future harm, not present harm, a true disgrace of what justice should be, “innocent until proven guilty”… but now… “Guilty until proven innocent”.

      • Edna Fletcher

        This is abuse of power by those who have it over others- they know what they are doing, but they lack morality and robust intellectual ability to really question, probe and reflect on the judgement they make to ensure that it is not going to harm the child emotionally more if they are wrong about the future risk.

        Certainly they would never accept being wrong. That goes for judges too who refuse to return children wrongly removed. The state moves children in care around willy nilly without deeming it harmful, but judges seem to think innocent natural parents can be denied the move back home of their children after wrongful adoption. These judges and power seekers are not the people loosing children but playing God (badly) with the lives of children and their families. Would I call these people human beings?…..

      • I do actually broadly agree with you and Ian on this one, the law is intended to be that risk of future harm is based on hard, established facts to justify that risk (i.e there’s something in the here and now that the parents HAVE done wrong, not just the phantom fear that they MIGHT in the future), but a case like Re B in the Court of Appeal makes me feel a bit dubious that in practice what is sometimes happening is a paternalistic state approach in opposition to the Hedley judgment I regularly quote. The Court of Appeal decision in Re B makes me feel uncomfortable that the burden of proof was not as applied as rigorously as I believe it should be.

        I do genuinely believe that where the State is removing a child, the reasons for this not only should be plainly stated, but they should be for reasons that would have the support of the general public (were they to know the actual facts that were placed before the Court) and I always feel that ‘risk of future emotional harm’ is a bit flimsy without firm explanations as to what is said to be the risk and why.

        Ian’s thing about ‘no crime being committed’ is a difficult one, we don’t agree on that. By way of illustration, if a man gets out of prison for sexually abusing six year old girls, and after his licence conditions are all expired, moves into a home with a woman who has a six year old girl, he hasn’t committed any criminal offence, but I think that there IS a risk to the child that if mother can’t be persuaded to make the right choice between the girl and her new boyfriend, the State has to intervene. I would not want to have to wait until the girl makes a complaint about BEING abused in order to protect her in cases that are as foreseeable as that.

  3. It’s going to be a busy day at the SCUK – they are giving judgment in Prest as well!

  4. forcedadoption

    I respect your comment suespiciousminds but still disagree even with the example you have given.If the sex offender’s license conditions have expired as you say then the State is virtually saying that he can once again work with children in a school or care home.In those circumstances it would be illogical for the State once giving those permissions to remove any child of a woman he subsequently lives with .Either he is clear to be with children or he is not ;and in the latter case his license terms would still apply and both he and the mother would be committing a criminal offence by living together with a child.

  5. Sadly, it seems that this 3 year old child will be subject to definite future emotional harm by forced adoption endorsed by the Supreme Court. Dreadful.

    • I don’t have any insider knowledge, but my gut feeling is that the Supreme Court will reverse the decision, using the Templeman and Hedley decisions that I am so fond of. I could easily be wrong, I was next to certain that the ‘chains of section 37 ICOs’ would be sat on by the Court of Appeal.

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