This is a post by Sarah Phillimore

Parents versus the state

The question of ‘parents rights’ has been bought into very stark focus by the court hearings around Charlie Gard. EDIT And have continued around the case of Alfie Evans. There has been an enormous wealth of comment, blogs and articles which demonstrates the strong emotional reactions of many to these proceedings; a stark illustration of the tensions around balancing completing ‘rights’ and interests of parent and child – particularly when the child is an unconscious baby.

A thoughtful article in the Independent summarised the key issues well – decisions over Charlie Gard’s future encapsulated a clash between medical opinion and parental instinct. The law is clear; where doctors and parents disagree over what treatment is in the ‘best interests’ of a child, neither parents nor doctors are able to demand or veto certain treatment. Any dispute must come before a court where a Judge will decide. The court had to operate on the fundamental principle of the Children Act 1989; that Charlie’s welfare would be the ‘paramount’ consideration.

Parents versus parents

Parents ‘rights’ when they argue between themselves about what is best for their child, are utterly subsumed into the idea of the ‘welfare of the child’. This principle was firmly and clearly restated by the Supreme Court in B (A Child) [2009] UKSC. See the judgment of  Lord Kerr at para 37 :

… All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

There is an immediate and obvious distinction between public law (cases involving the local authority and parents) and private law (cases involving disputes between family members). Where the state wishes to intervene in the sanctity of family life, it has to satisfy the test under section 31 of the Children Act 1989 and show the child is suffering or at risk of suffering significant harm. Nothing less will justify state intervention and this high threshold will mean that some children grow up in less than ideal situations. The risks and impracticality of any policy of deliberate ‘social engineering’ determine this outcome.

But in private law cases, it is different. The focus there is on which parent or which place would promote the child’s best interests and ‘parents’ rights’ are clearly subsumed as relevant only insofar as the parents claim a right to promote those best interests.

There are some who are critical of this approach and worry that the pendulum may have swung too far away from considering ‘parents rights’ or the rights of the family as a whole.

However, the emphasis on the welfare of the child is explained by the problems that arise when individual family members have very different views about what constitutes a child’s best interests. A stark example is found in the case of Gibbs v Gibbs in 2017 where the mother was eventually sent to prison for refusing to end her campaign to publicise the father as abusive towards their children. To attempt to resolve a dispute about a child by identifying, analysing and weighing in the balance the ‘rights’ of all adult disputants would take time and energy away from identifying what the child needs.

Some areas of concern

Why does the test to over rule a parents’ rights differ according to who or what wants to prevail? 

The question for the court, in deciding a clash between parents and a state agency that happened to be a hospital was not whether Charlie Gard would suffer ‘significant harm’ if further treatment was carried out. The issue was whether or not the treatment was in his ‘best interests’ – his welfare was paramount. 

Some commentators expressed concern about this. If social workers decide that a child should be removed from his or her parents’ care, they have to bring this to a court and satisfy the test under section 31 of the Children Act 1989. That children would ‘do better’ in another environment is never a justification – as Baroness Hale commented in Re B (Children) [2008] UKHL 35

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments…

Already, it isn’t clear what weight is afforded to the views of parents who clash with the decisions preferred by a state agency. Why should a decision whether or not to end medical treatment for a child be subject to a different test to the decision whether or not to remove a child from the parents’ care?

No one has doubted that Charlie Gard’s parents were acting out of anything other than love for their son and wish to secure him the best possible treatment. If there was no evidence before the court that their decisions risked causing him significant harm, why should the court interfere? No doubt, Charlie Gard’s parents have found the process by which their wish to make decisions for their son was overruled by the courts, similar to the misery and bafflement of a parent who faces the adoption of their child, without their consent.

If there is no legal aid, what are the implications for access to justice?

A further anomaly is the automatic availability of legal aid to parents in care cases – but not parents facing applications by an NHS trust, or wishing to argue against an adoption order, or parents arguing between themselves – unless one can show evidence of domestic violence.

Charlie Gard’s parents did not have legal aid and could not afford to pay for a lawyer. They were fortunate to find lawyers prepared to act for nothing. Francis J commented at para 17 of his judgment:

it does seem to me that when Parliament changed the law in relation to legal aid and significantly restricted the availability of legal aid, yet continued to make legal aid available in care cases where the state is seeking orders against parents, it cannot have intended that parents in the position that these parents have been in should have no access to legal advice or representation. To most like-minded people, a National Health Service trust is as much an arm of the state as is a local authority. I can think of few more profound cases than ones where a trust is applying to the court for a declaration that a life- support machine should be switched off in respect of a child.

‘Rights’ which cannot be enforced in court because the parents can’t afford legal representation and don’t understand complicated law, are no rights at all.

The adversarial system and the standard of proof

An enormous problem – and one which I think firmly underpins most of the criticism and distrust of the family law system – is that an adversarial process which relies on oral evidence and cross examination may work tolerably well in circumstances where the disputed facts are often backed up by contemporaneous written documents. But it is often very difficult to test ‘evidence’ that is no more than the assertions of two people. Particularly when these people are giving an account of their relationship, built up over many years and which may have been experienced/witnessed by only them.

In cases where parents make allegations against each other of sexual or violent abuse, it is my view that waters have been seriously and dangerously muddied by the requirement that police forces were to commence investigations into sexual assaults on the basis that they ‘believe’ the complainant (who is usually described as the ‘victim’ ).To have as a ‘starting point’ a belief that one person is telling the truth fundamentally poisons the integrity of any investigative process. See the 2016 report of Sir Richard Henriques into the failures of the investigations of the Metropolitan police in ‘Operation Midland’.

Parents in care proceedings have raised serious criticisms about the standard of proof in care cases being on the ‘balance of probabilities’ – pointing out that removing a child from an unwilling parent is every bit as horrible as sentencing a parent to a prison sentence and the standard of proof should therefore meet the criminal standard of ‘beyond reasonable doubt’.

What are rights worth if they can be discarded by the state on a low standard of proof?

Enforcement of established rights

However even a ‘blameless’ parent who is vindicated at the conclusion of a finding of fact may not find that their ‘rights’ translate into any kind of action by the courts, because of the likely impact of such action on the emotional well being of the child.

This is often the argument used against removing a child from an adoptive placement to return to birth parents – but the UK has been criticised for failing to give sufficient recognition to the child’s right to be brought up by his or her birth parents.

What are ‘rights’ worth if they are not even considered, because ‘paramount’ is interpreted as ‘exclusive’ or ‘overwhelming’ ?

 

How do we establish what is in a child’s best interest if parents don’t have the ‘right’ to determine this?

This brief discussion above about the limits of parental autonomy to determine outcomes for their children highlights that as a society we have agreed that parents do not have the right to subject their children to whatever indignity they wish in the name of ‘family life’ or ‘respect for parents’.  The court will therefore have to hear evidence and make a decision based on the evidence before it.  The court is faced with a truly difficult job when before it come two parents who argue from entirely different perspectives about the fitness of the other to parent.

I have always supported the need for the state to intervene to protect the most vulnerable members of its society. Children are not the chattels of their parents; some children do need to be ‘rescued’.

But the state and its officers have to tread carefully around the ‘family’ and how they chose to intervene in its structures. The emotion and interest in the ‘rights’ of parents in the aftermath of proceedings around Charlie Gard demonstrate a clear need for further discussion and exploration of the nature and extent of parents rights. A system that appears to horrify a large proportion of the population subject to it, has either not been well explained or should not be defended.