Friday 27 January 2012

Take three victims

Over at Ambush Predator, a story is being discussed.  A young father (not married) was ruled to be unable to care personally for a child and so the child was released for adoption against his wishes. He reacted violently to this and gruesomely attacked the social worker.

The case may be more complex than if first appears; consider these possible settings.

The same objective fact is settled in all cases: due to injuries, the father is personally unable to care for the child without the help of  a full time nanny or nannies,  which is what  the Queen used when she was unable to look after her own children due to being away on state business. We aren't prepared to fund that for this man so it is argued that it is in the child's best interests to be adopted away in to a couple who can care for her personally.

Story (i) Mr Thug

Drunken lout of 20 starts scrap on journey back from nightclub, having regularly indulged in fighting. This time he receives a thumping which results in a stroke.

The stroke permanently damages his ability to communicate but not his intellectual understanding of speech or his ability to move about. This is quite common with stroke patients. 

The social worker was communicating with the father and that the father understood what was being said.  The man was held fully liable for the attack in court.

However, there is an inconsistency: the child was being removed because it was argued the disability made the young man an unsuitable carer,  but if he was a lout he was in fact always unsuitable, regardless of whether he came off worst in a fight.

Yet we generally do not remove children from the care of louts, including those with a history of crime and making threats.   Maybe we should, but we don't. Or at least, not routinely.  Should the penalty for starting a fight be the removal of a child?

Story (ii) Mr Innocent Victim

Young man of 20 is walking home one evening when he is set on by three youths.  The youths shout "Kill Whitey" but despite their colour and the shouting testified to by horrified witnesses, the crime is not classed as racially aggravated.  No other explanation is ever discovered for the random attack.

As before, the youth sustains an injury which results in a stroke and the permanent damage of his ability to communicate but not his ability to understand.   The best interests of the child are thought to lie with being brought up in a much richer household by parents without disabilities.   The social services obtain a court order which sets aside the father's wishes and will exclude him from the child's life for at least the next 14 years, in the hopes that he will drop dead and stop being a bloody nuisance in the interim. Dear Dad, I never knew you.  However, it is still objectively true that he cannot provide for the needs of the child without a full-time nanny - just like the Queen couldn't.

Regardless of his personal qualities and innocence, the child is removed from his life.  He is then blamed for reacting violently to this and it is concluded that because of his violent reaction to a double injustice, it was right to remove the child.

Should the penalty for losing a fight you never started, be the removal of a child?

Story (iii)  Mr Soldier

A young man of 20 is sent to Helmand. He is a professional fighter and accepts that this involves killing people, and it may also mean he is killed.  Blown up by an IED he keeps all his limbs but in falling takes a blow which causes a stroke.  Naturally, he is discharged.

Following the stroke his girlfriend, whom he had intended to marry, cannot cope with his changed prospects and inability to communicate as she would like, and, having her own problems, puts the child up for adoption.

He is refused permission to be allowed to keep his own child on the grounds that he cannot meet the needs of the child without a full-time nanny, and this is neither affordable nor acceptable, even though the Sovereign whom he served did exactly that.  Indeed, Cherie Booth QC employed a nanny to enable her to keep up her legal career when she was married to the PM.  Miriam Clegg and Samantha Cameron have both relied on nannies, accepting they could not give full-time care to their own children. Nobody suggests that either David Cameron or Nick Clegg should give up public office or have their children taken away.

The young man reacts violently, as it is sometimes known for soldiers to do, when it strikes him there is one law for the rich and another for the Poor Bloody Infantry. Is it fair that rich people are able to nominate proxy childcare, but poor people get social workers, solicitors and judges who re-allocate their child? You can buy a lot of nanny-time for the cost of that professional crew. Both the judge and the solicitor will probably have nannies of their own.

Had he not been blown up, he would have continued to tour and be away from the child for considerable periods of time, but he would have been allowed to keep in contact with the child despite the needs of his job (this has been verified only last week in a dispute between a serving officer and his ex-wife).   In general, we do not accept that merely having a job which involves the parent being absent and therefore unable to meet the day to day needs of the child, is automatically grounds for adopting a child away. But he knew the risks and voluntarily went in to this business, as Mr Thug in story (i) did.

Should the penalty for being unlucky in a lawful fight be the removal of a child?

It is sometimes argued that The Best Interests of the Child (BIC) must prevail.  Yet analytically it does not, since that would mean systematically reviewing the circumstances of each child in Britain and re-allocating them to richer, better educated carers until the point is reached where no child could get a better deal by moving households.   That is, optimising welfare.

There are calls to do that, but that is precisely why the European Convention on Human Rights defines the family as sacred.  A particular family may be sub-optimal, but that alone is not enough reason to dissolve it.  Besides, it is very difficult to define sub-optimal. I know what I think it is, but so does everyone else, and I bet we don't agree. It is impossible to avoid Godwin's law;  the stricture was set up because the Nazi Family Policy thought it could stipulate the standards of family care.

If Mr Thug is a thug, that may be a reason he should be dispossessed of his children, but Wayne Bishop wasn't. The prisons are full of thugs being visited by their families. The  ECHR upholds the general right to respect for family life.

What has happened in the case of Mr Bould is that the welfare of the child has been optimised allegedly because he got his head kicked in. The plea in mitigation by defender Mr Holt is reported as:
"Any issue of neglect was not intentional. It was the by-product of their disabilities". 
Then again, Bould set fire to his ex-girlfriend's car, which doesn't sound like a by-product of disability but viciousness, nor does pouring boiling water over a social worker.  As the baby appears to have been present, that also introduces a possible risk of scalding the child. He sounds less and less like a person capable of behaving like a responsible adult.

Against that, we are told that he social worker decided to talk to the sister, not Bould, about the last contact meeting. Given that we are told Bould finds it difficult to talk, and the social worker was already late and thereby deprived Bould of precious minutes of contact, was starting to gossip about him the moment he left the room to go to the loo respectful towards a disabled client, or was it designed to humiliate and antagonise him? 

From the test cases we can see that how you call it depends not only on the interests of the child but also the circumstances in which the disability of the parent occurred. In two of these three cases it doesn't seem  fair to punish a victim by having their children alienated from them.  In the third case, it does seem fair, but not because of the father having been injured. Yet in practical terms, the question is always the same: can they look after a child?

Practicallity matters, but it cannot be the sum total of what matters or else the concept of respect for family life is a meaningless mantra.


Lysistrata said...

This is a very thoughtful, and thought-provoking post. All I can say is that there are no easy or quick answers.

JuliaM said...

"Practicallity matters, but it cannot be the sum total of what matters or else the concept of respect for family life is a meaningless mantra."

Perhaps we need to focus on the likely quality of that 'family life', rather than just its existence?

But that means being judgemental. And judgement seems a 21st century dirty word.