Spider Woman by Lady Hale

Author:Lady Hale [Hale, Brenda]
Language: eng
Format: epub
ISBN: 9781473585591
Publisher: Random House

In our law, that limit is reached if the child is suffering or is likely to suffer significant harm as a result of a lack of reasonable parental care.6 But even if this is shown, the court cannot make an order allowing or requiring the state to intervene unless this will be in the best interests of the child.7 There are judgments to be made about what has happened or is likely to happen. There are also judgments to be made about what will be best for the child. Those judgments now have to be made against the need to protect the family from unjustified state interference.8

Some of the hardest cases are those where the child has been physically or sexually abused by the mother’s partner and the mother has failed to protect the child. Sometimes, there can be little sympathy: the mother has chosen to cover up for a dangerous partner. But at other times, her inability to protect her children stems from her own vulnerability or the abuse she has suffered. Whatever the reason, the child has to come first. But the mother who suspects that her child is being abused is in a difficult situation. If she does nothing, and the truth comes out, she may be accused of failure to protect. If she does tell social services, she will probably be advised to exclude or leave her partner and deny all contact. But if he then applies to the courts and her suspicions cannot be proved, she is in an even worse position. She may be regarded as a wicked woman who has made it all up to get rid of him (and there are indeed such wicked women). If she persists or runs away, she may lose the child, either to social services or to the person she has accused. If she stays put, she will be expected to facilitate the relationship between them.

Contact disputes were the third type of children’s case to come our way.9 It is taken for granted10 that it is in every child’s best interests to develop a meaningful relationship with both parents unless this would be harmful to the child. Most of these cases are dealt with in the county or magistrates’ courts (now the family court). They might come to the High Court, either because there were difficult factual issues, such as allegations of physical or sexual abuse, or because of what was known as ‘implacable hostility’: where the mother (it was usually but not invariably the mother) had shown herself so adamantly opposed to contact between the children and their father that she would refuse to comply with the court’s orders. The lower courts seemed to think that we had magic powers which they did not. We did not. Enforcing contact orders is difficult for any court. Sending the mother to prison, or fining her, is not going to help the child. Changing the child’s residence from mother to father is the ‘nuclear option’, but it is not always practicable.

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