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