The Legalities of Mothering: The High Court Orders the Removal of a Toddler from a Breastfeeding, Bed-sharing Birth and Biological Mother in a Judgment Which Raises Questions About Mothering Practices

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Don’t believe me?

I wondered when a case might force me back into my law reporting shoes, albeit with a mother’s eyes as well as legal ones. So here it is, a judgment (read HERE) of the High Court, Family Division, which has ordered the removal of a child from her biological mother not on the grounds of abuse, neglect, violence, drug use or inadequate parenting of some kind, but effectively on the application of misogyny and distrust of mothering. Not in care proceedings by social services, brought because of a deemed failure. It arises out of a private dispute between two adults as though the prize was piece of land, or a valuable item of property.

The mother’s crime? Daring to want to raise the child she grew and gave birth to; engaging in traditional mothering practices such as natural-term breastfeeding; carrying the child in a sling; and bed-sharing; and not wishing to hand her child to a man who provided sperm in order for he and his partner to have a child. The judgment is a one against traditional maternal practice and, in one part, an indication that, in our culture, a mother must ‘go out to work’. It is the formal and legal indictment of many things I, and many other mothers, hold dear.

It implies: The male seed is what matters. Calm paternal detachment is what matters. Mothers do not matter. Mothering is smothering. And if you dare protest, if you dare love your child too much, you’re out.

EDIT: This is a complex case and there are competing views to be taken. There are criticisms made of the mother’s behaviour towards the father, her ‘homophobia’ and her attempts to frustrate contact with the father by GP visits and attachment parenting tools. In effect, the judge concluded that the mother was fostering a close attachment in order to interfere with the father establishing a close bond with the baby. The judge’s decision – said by the judge to be centrally about the welfare of the child and who was best to see to the child’s needs now and in the future – is based on her hearing of the facts and seeing the witneses and making her own assessment. However, this piece seeks to examine the treatment of, and comments by the judge about, maternal practices such as those found in attachment parenting techniques. It is not a summary of the judgment but an examination of its attitudes towards mothering, based on direct quotations from the judge herself. It is my take.

For some background: a judge was asked to consider a 15-month-old child’s best interests having received an application by a man that a child be removed from her mother and, in effect, given to him to raise, instead. The red herring in this case is the fact that the father is in a same-sex relationship, and there is a dispute as to whether the pregnancy arose from a surrogacy-type arrangement. Whatever the case, the baby is the biological child of the mother but also has a biological heritage from the man who provided the sperm. There is no hint of payment changing hands. It appears that the child resided with her mother but had had contact with the father.

After hearing the parties’ evidence, including a dispute about the nature of the ‘surrogacy’ arrangement, the judge in effect decided that the father was best placed to meet the child’s needs now and in the future.

This is despite the child being happy. This is despite the judge acknowledging that the child would be stressed by her removal from her mother: ‘it is bound to affect her, likely to upset and distress her in the short term at least and necessarily amounts to a change in her circumstances … she will miss her mother’.

Actually, judge, it’s a little more than ‘a change in circumstances’. You are bereaving a 15-month-old child. She will grieve. She will wail. She will scream for her mother. And her mother will grieve. She will wail. She will scream for her child. And you will see that, call her hysterical, and punish her for it. I do not rehearse all of the judge’s conclusions – please refer to the judgment – but there are a number of comments which are troubling.

The judge states that ‘at present [the mother] is able to care for [the child] well physically but there are already grounds for concerns about her mother’s over emotional and highly involved role in this infant’s life’ (my emphasis).

EXCUSE ME? A mother daring to be over emotional? A mother daring to be highly involved in her biological, loved, child’s life? Crime of the century. Let’s ignore the World Health Organisation’s guidance that children be breastfed for at least two years, while we’re at it.

Against the missing her mother, the judge finds that the child will be at risk of suffering harm if she remains with her mother. No. Not those types of harm: not sexual or physical harm. Not neglect. Not exposure to drugs or alcohol. No. She will be harmed because her mother dislikes her father and disagrees with same-sex relationships. She will be harmed by the mother frustrating contact with the father. And let’s not forget the harm from a deep attachment to one’s mother.

‘Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body.’

AND? A child of 15 months has to be carried or pushed in a pushchair when not walking. She has clocked up using a sling as something detrimental to a child’s development; it is non-evidenced based, ignorant and biased against traditional parenting methods. She does not address in her judgment any literature, studies or authoritative work by attachment theorists, child development psychologists or countless mothers who attest to the benefits of carrying children and keeping them close. Children of 15 months are not designed to be independent.

One has to question whether the mother would have been damned either way. Not holding baby close? Detached, cold mother.

Carrying baby close? Clingy, enmeshed hysteric.

Next, the child ‘spends most of her time with her mother who does not set out any timetable for returning to work, as [the mother] would have to, to provide for [the child] and for herself’.

I can hardly find the words for this. A mother is being criticised for spending time with her child. She is presumed to have to return to work: by economic compulsion in a society which does not value the work of a mother, or the needs of a child in receiving a mother’s care. I have written on this at length in the Politics of Mothering and this blog. But to see it in a judgment’s conclusion for finding against a mother and removing a child from her care is staggering.

Remember what I said about enmeshment? ‘There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness’.

Says who? Gina Ford? Again, the broad absence of child developmental psychology, attachment theory (Bowlby, look it up) and a broader acceptance of the value of maternal closeness and secure attachment in infants by seeing to their needs is absolutely astounding. The judge, who does not have children, refused to hear evidence on attachment, deeming the psychologist propsed by the mother’s lawyers to be insufficiently expert, preferring the observations of the child’s guardian and to make her own, ill-informed and ignorant assessment of attachment parenting.

Not content with this the judge states, in a sweeping way, ‘the attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand throughout the day and night raises questions about the long term effect on [the child]’.

WAIT. Call the cops. I’m guilty as charged, My Lady. I bed-share, I carry my children and nurse on demand day and night. I am truly a mother who needs to be relieved of her children. It might ‘raise questions’, but had she allowed the mother to call her witness, an educational psychologist who has experience in attachment issues, bed-sharing and natural term breastfeeding, or indeed asked countless mothers throughout time, child development psychologists, Dr Sears, to name a few, she might have received answers which did not leap to hang the mother for her crime of mothering her child and assume, as many non-parents might, that it is all a bit odd, this strong bond between mother and child.

And, as a swipe against the mother’s highly understandable anxiety and visceral need to keep her daughter – one which I can relate to: I would not be responsible for my actions if someone threatened to take my children – the judge penalises her for making a ‘a plethora of allegations’ against the father and his partner. She lauds the calm shown by the father and his partner; and is impressed by their support of the mother spending time with the child. But this is where it all becomes nonsensical: doesn’t their view that the mother is not likely to be harmful or violent or otherwise damaging to the child tell you something? Doesn’t it rather tell you that there are no grounds of violence, harm or objectively manifest psychological damage to justify the removal of this child from her mother’s care? The child is currently happy and will continue to be so in her mother’s presence?

I have found this judgment incredibly upsetting, despite my years reporting on criminal and family cases. The judge makes unfounded assumptions about maternal practices. When the court removes a child from a family into, say, local authority care, a more stringent assessment is made: there needs to be a greater satisfaction that the child will come to harm. This case seems to me no different in its result: a child is being removed from her loving mother and put into the hands of someone who has not the same bond, albeit a biological father who has had contact with the child and who is seeking to enforce some kind of informal agreement that he would have rights over the resulting child. Yet a much lesser test has been applied – in effect, the judge’s preference of parental practices, the judge’s preference for calm detachment, and the judge’s prioritising of the male seed over the genetic link and maternal bond from pregnancy, birth, and breastfeeding; and her criticism of the mother’s behaviour generally, including homophobia and frustration of contact with the father.

This is a complex case. It is unfortunate. The judge’s assessment about the well-being of the child in the future is finely balanced.

In all of this, the judge refers to the mother’s desire to bear her child and keep her child. This, reader, seems to be the mother’s first crime. Her second, to care for her daughter. Her third, to care enough to be assertive about the case. It is Kafka-esque and fundamentally misogynist.

Ultimately, the High Court has bartered this child as though a family heirloom; ordered the transfer of the child as though adjudicating a refund for a service rendered. The judge has attacked the practice of mothering as damaging and raised the status of the male seed back to its historical place: supreme.

And it is nothing short of shocking.

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photo credit: Yochai Hands via photopin (license)

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12 thoughts on “The Legalities of Mothering: The High Court Orders the Removal of a Toddler from a Breastfeeding, Bed-sharing Birth and Biological Mother in a Judgment Which Raises Questions About Mothering Practices

  1. The mother in this case reached out to Mumsnet, Attachment Parenting UK and Gentle Parenting International. She obviously couldn’t state the details but she did say that she had been denied the opportunity to get an expert opinion and was looking for research she could use to defend herself. There were a lot of things she did that didn’t help her case, but even if it was the right thing for the father to take custody (and I don’t think it was), to sever the relationship so totally and suddenly is a serious misjudgement. She must be heartbroken, as must her poor child.

    Liked by 2 people

    1. Hi Sheena, thank you for your comment – I didn’t realise that she had reached out. I don’t blame her. The judge refused to accept her expert. I don’t like to think what I would do if someone threatened to take my children – but being calm is not one of them. Thank you for taking the time to comment.

      Liked by 2 people

      1. I was in a similar position to this mother. I faced losing my children. My crime was being over emotional when faced with an abusive ex going for custody. I was upset and tearful at the situation. This they said was a sign I was not a good mother. My ex pulled out of the custody case and decided to see the children 9 times per year. Apart from that the children would have been wrenched from me, neither wanted this. They were 8 and 4 at the time. Now 13 and 9. Eldest has not seen dad and dad has just stopped seeing youngest. I can’t imagine how this mother and child are feeling. She must feel like she has been given a death sentence.

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  2. I actually find this physically sickening and just so upsetting….to deny that poor innocent child of the security and love that she knows… To settle a sperm donor / surrogacy dispute… It actually makes me ashamed to be British if this is the mindset of our judicial system… If law is about point scoring basing decisions on political agendas and ignorance rather than the fundamental natural bond established in pregnancy birth and beyond!! This is revolting to me oh and for the record as a baby wearing bed sharing smothering mother who practices attachment parenting I don’t suppose I would be any better behaved if the removal of my child was threatened! This should be appealed and resolved immediately and the judge stripped of her duty until educated.

    Liked by 1 person

    1. Hi Lys, thank you for your comment – the case is very complex and I too find it pretty alarming. Do read the judgment for the judge’s exploration of the facts and concerns about the mother’s behaviour. It is interesting reading.

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  3. I’d like to sign a petition, if there is one. Any info one? I’m terrified this will overflow into all court’s. I think this judge should be removed. There are no factual decisions here, only personal influences. This judge took their own beliefs and made judgement against this woman.
    Women cannot win. We love our children, we are harming them. Mother’s that abuse their children are monsters.
    We must fight this!

    Liked by 1 person

    1. Hi Melanie, it is a very difficult and complex case, and there are many issues explored by the judge and it makes interesting reading – you can follow the link for the whole judgment, where the judge explores the other issues in the case. It has been interesting to hear other people’s views of the case.

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  4. Is that it? Nowhere to appeal? Can she file an ethics complaint against the judge for basing his /her opinion on personal feelings ratger than
    Law and evidence? Why was the expert denied? This is sickening and outrageous!

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    1. There is a right of appeal from the Family Court to the Court of Appeal, and the mother has lawyers on her team so with hope there will be an appeal. The judgment is complex and the judge made an assessment of her view of the best welfare for the child now and in the future. In doing so she seems to have forgotten that bereaving a 15 month old toddler who is securely attached to her mother might well be damaging for her, and seems to have used conduct of the mother in the proceedings as well as her opinion of the father against her becuase of adverse effects of conflict on the child. It is a difficult case and is so much more than the headlines of ‘court orders gay couple get baby after surrogate changed mind’ – the mother is the biological, birth and bonded mother, not a ‘mere’ surrogate.

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  5. I’ve shared this 3 times on my facebook page (The Double Parent) and tweeted it. This is story needs to be blasted all over the media – it’s shocking and disgraceful, and more scary than that, is the knowledge that there are more stories just like this one to come in the future.

    Mothers, mothering, and motherhood are nothing in the eyes of law. Family law is a patriarchal system built by men for men for the systematic and systemic continued control of women and children.

    Liked by 1 person

  6. Hi Double Parent, it is a very difficult case – the media reported it as ‘court orders gay couple to get baby after surrogate changed mind’ – which neglects the fact that the judge did not apply surrogacy laws (which would have allowed for the mother to change her mind I understand) and the mother was the biological mother – not an egg donor. Barbara Katz Rothman writes about these kinds of complicated cases in Recreating Motherhood – a very interesting read.

    Liked by 1 person

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