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Analysis Post-Re B-S: The Fallacy of ‘Better than Good Enough Care’

Paul Hart, barrister, 15 Winckley Square Chambers, considers whether the courts are asking the right question when determining the capability of parents to care for their children.

Paul Hart, barrister, 15 Winckley Square, Preston

Paul Hart, barrister, 15 Winckley Square Chambers

In Re B-S (Children) [2013] EWCA 1146 Sir James Munby P expressed 'real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.'

This short article examines a line of reasoning and analysis that has been prevalent for many years, but requires scrutiny in the light of the trenchant observations of the President of the Family Division. Indeed, it probably required scrutiny anyway.

Time after time, whether in statements, reports or oral evidence, the Family Court hearing an application for a care order will hear the assertion from social workers, child psychologists, Children's Guardians and others that 'this child needs better than good enough care.' The common setting for this assertion is a child with a particular need that will require specific skills or levels of commitment if that need is to be met. The need may be physical, emotional, personality-based, mental health related, or have other origins. It may or may not be the result of the parenting he or she has received.

The evidence relating to the child that forms the basis for this assertion is only one part of the equation that will be placed before the court. The other part relates to the parents. Of them it will be said that by reason of one form of inadequacy or another, they are unable to meet the needs of this child who 'needs better than good enough care'. And thus the equation is complete: there is an imaginary line representing children's needs, and this child falls above it. There is another line representing parents' capacity, and these parents fall below it. Ergo, this child cannot be rehabilitated to the care of the parents.

Whilst this common form of analysis is used sincerely, does it stand up to scrutiny? Or does it have an element of sleight of hand about it? And is it compatible with the standard of analysis called for in Re B-S?

As a starting point, let us take the needs of children generally. Each child may be placed at a point along a line representing the degree of neediness. At one end is the child with no disability of any kind, who has a completely placid and biddable disposition, and who places so few demands upon his parents that he almost brings himself up. At the other end of the scale is the child with multiple serious disabilities, emotionally damaged, and a difficult personality such that he places constant and high-level demands upon his carers. Most children fall somewhere in between.

Now take a child from the 'difficult' end of this line. What does he need? The answer is not that he needs 'better than good enough care'. The answer is rather that he needs care that is good enough for him. Indeed, this is true of any child from any point along this imaginary line. No child needs 'better than good enough care'. Each child needs care that is good enough for that child. The notion that any child requires better than good enough care is a complete fallacy.

So, a child who has ADHD needs no more than a carer who can manage that child with his ADHD. Such a carer is 'good enough' for that child. On the other hand, the child who is content to sit and read Great Expectations and who tidies his bedroom unprompted (yes, this may be moving into the realms of fantasy) does not need a parent who hovers over him in a state of hyper-vigilance, and would probably be harmed by it.

A similar analysis must be applied to the assessment of the parents of the child in question. The issue is not whether they are able to provide care that is 'better than good enough'. The issue is whether they have the capacity to provide care that is good enough for this child.

If this exercise is carried out carefully, it may prevent a parent from being excluded as a carer through faulty reasoning. For example, take parents whose intellectual functioning is at the level of mild learning disability. Even with high levels of support, such parents may be quite incapable of providing good enough care for a child with complex physical needs that require constant vigilance and sound judgment. However, they may be perfectly capable of caring adequately for a child at the 'easy end' of the spectrum described earlier. And with proper support, they may even be able to provide good enough care for a child who presents some degree of challenge.

A safeguard against flawed analysis is to go back to basics, and there is no better way to do so than to borrow the elegantly crafted words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 1050 where he did precisely that:

"Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

"There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that 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, while 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 follows that if the system is functioning properly and within the law as it stands, there will be some occasions when children are not removed from – or are rehabilitated to – homes where it is beyond doubt that the care they will receive will be suboptimal, and clearly below what they would receive in foster care or with adoptive parents. In the appropriate case, that outcome should be viewed as a success rather than a failure because, as Hedley J pointed out, it is not the provenance of the state to spare children all the consequences of defective parenting.

For these reasons the mantra of 'better than good enough care' should be abandoned. It is dangerous and can easily lead to analysis that is not consistent with the law, and therefore to a false conclusion. At worst, it can become a thin disguise for an exercise in social engineering. What is required in its place is a careful and subtle evaluation of the needs of this child alongside the capability of these parents to meet those needs with any support that may be reasonably required from the local authority and others.