Birth Parents and the Collateral Consequences of Court-ordered Child Removal: Towards a Comprehensive Framework

This article aims to capture the full range of consequences that birth parents face, following court-ordered removal of their children on account of child protection concerns. With references to legislative and policy responses in England, the USA, and Australia, we argue that states reinforce parents’ exclusion, where the full gamut of challenges these parents face is poorly understood. Drawing on a wealth of criminological research concerned with the collateral consequences of criminal justice involvement we adapt conceptual ideas and vocabularies to describe the combination of informal and formal penalties that parents face at this juncture. Discussion extends previous published studies concerned with loss and social stigma following child removal but charts new theoretical ground regarding legal stigmatization and welfare disqualifications. The article is timely given the continued high volume of children entering state care in a number of international jurisdictions and recent empirical evidence from England that a sizeable population of birth parents who appear as respondents in the family court are repeat clients. Making the case for a fundamental re-appraisal of state responses following court-ordered removal, the article concludes with a call for a more comprehensive family justice response, attuned to the additive burden of child removal on parents whose lives are already blighted by histories of disadvantage. I . I N T R O D U C T I O N The impact on parents of court ordered removal of their children on account of child protection concerns is insufficiently theorized, despite the fact that a significant number of parents in a range of international contexts lose their children to the state in this way. For two reasons, there is now some urgency to tackle this omission. Firstly, an increasing number of very young children have entered state care during the past 5 years in a range of international jurisdictions (e.g. England, Australia, and the USA). Secondly, recent research in England has exposed the scale of birth mothers’ repeat involvement in the family court, which is no doubt paralleled in nation states with similar child protection systems (Broadhurst et al, 2015a). These observations prompt searching questions about how parents might be helped to salvage VC The Author 2017. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. 41 International Journal of Law, Policy and The Family, 2017, 31, 41–59 doi: 10.1093/lawfam/ebw013 Article D ow naded rom http/academ ic.p.com law am /article/41/3065577 by gest on 15 D ecem er 2020 productive lives following child removal and the potential contribution of therapeutic or legislative remedies. Searching the literature for relevant theoretical insights finds an important body of work on grief responses to the loss of children to state care or adoption. However, the majority of studies have focused on child relinquishment, rather than court ordered removal (Deykin, et al, 1984; Askren and Bloom, 1999; Doka, 1989, 1999; Aloi, 2009; Brodzinsky and Livingston-Smith, 2014). Although this work is relevant, the involuntary loss of a child through adversarial court proceedings is a very different experience, because parents are left with an indelible legal record that is highly consequential. In this article we provide a preliminary framework that captures the broad range of informal and formal consequences that follow for this particular group of parents. In addition to mourning the loss of their children, parents can experience social and legal stigmatization, sanctions on kin relationships and reduced welfare entitlements. With references to legislative and policy responses in England, the USA, and Australia, we argue that states (inadvertently) reinforce parents’ exclusion, where the full gamut of challenges parents face is poorly understood and postremoval support is lacking. Thus, we add to an important, but limited body of work concerned with parents’ life chances beyond family court intervention (Raskin, 1992; Carolan et al, 2010; Schofield et al, 2011; Neil, 2013). To aid our analysis, we turn to literature in the field of criminal justice that describes the collateral consequences of criminal justice involvement. In stark contrast to policy and research neglect of parents following child removal, this literature offers a wealth of theoretical and empirical work concerned with comprehensive support for offender rehabilitation (Logan, 2013; Love, 2015). Although there is some risk in drawing comparisons between parents within family proceedings and offenders within the criminal justice system, theoretical propositions provide a useful starting point for our project. By adapting vocabularies and conceptual ideas from this field, we find a way to capture the broader range of consequences that may help explain parents’ repeat appearances before the family court and generate fresh thinking about parent rehabilitation. This article is divided into a number of sections. Given the dearth of published work on policy and practice responses to parents following child removal, the first section provides readers with an extended background. We outline the reasons why parents are neglected at this juncture and in addition, make the case for a fundamental re-appraisal of state responses to parents beyond family justice involvement. We then turn to the criminological literature and consider what might be learned from an extensive international scholarship concerned with the collateral consequences of criminal justice involvement. Finally, we describe the range of both informal and formal consequences of court-ordered child removal, introducing a multi-dimensional framework that encapsulates the challenges faced by this population of parents, beyond the loss of their children. I I . B A C K G R O U N D 1. Birth parents beyond child removal: policy and legislative responses Where family courts deem that a child requires permanent placement in out-ofhome care or with adoptive parents, birth families typically disappear from the gaze 42 Karen Broadhurst and Claire Mason D ow naded rom http/academ ic.p.com law am /article/41/3065577 by gest on 15 D ecem er 2020 of services or find it very difficult to access support for their own rehabilitation. In the US and England, policy has moved in the direction of removing children more quickly from birth parents, with successive legislative developments giving greater emphasis to finding new families for young children (Gilmore and Bainham, 2015). In the US, the Federal law of the Adoption and Safe Families Act 1997 has been described as marking a shift away from family preservation towards an emphasis on the health, safety, and permanency needs of children (Whitt-Woosley and Sprang, 2014). This legislation directs child protection agencies and the courts to expedite the termination of parents’ rights, where parents are not able to show change within prescribed shorter timeframes. In England, we have witnessed similar legislative developments, with cross-party support for adoption as the preferred permanency option for infants and young children (Department for Education, 2013, 2016). Successive reforms to primary and secondary adoption legislation, now consolidated through the Children and Families Act 2014, emphasize earlier removal and placement with adoptive parents, where children cannot remain in the care of their birth families or extended family networks. In Australia, the most recent amendment to the Children and Young Person’s Care and Protection Act has also introduced a 6 months timescale for permanency decisions that concern infants (Fernandez, 2014). While it is entirely reasonable for states to encourage timely permanency plans for children, it is, arguably, unreasonable for parents’ own rehabilitation to be cut short because services reduce their involvement with parents following court proceedings. Although final evidence submitted at the close of care proceedings typically includes recommendations regarding parents’ treatment needs (e.g. for mental health or substance misuse problems), statutory frameworks in the US, England, and Australia, do not require the courts or children’s services to ensure these needs are met. In England, the Adoption and Children Act 2002 requires agencies to provide support to birth parents, but this typically takes the form of support for letter-box contact and brief counselling. In Australia, fewer children are adopted from care, and federal law and policy place a greater emphasis on family restoration. However, critics have argued that in the case of non-relative adoptions, post-adoption support services are limited and this is in spite of provisions set in place following Australia’s public apology to families on account of a difficult history of ‘forced’ adoption (Kenny et al, 2012). Where children remain in long-term foster care or with kin, the focus of professional services is again on reviewing the child and supporting his or her permanency placement. Birth parents will be kept informed of a child’s progress, but services will be reduced once reunification is ruled out. This is because child protection services are primarily focused on children and only tangentially concerned with the needs of parents (Kernan and Lansford, 2004; Wells and Marcenko, 2011; Gilbert et al, 2011). In Australia, the neglect of birth parents where children are in foster care has been subject to significant critique (Kapp and Propp, 2002; Kapp and Vela, 2004). Of course, lack of access to a continued programme of rehabilitation following care proceedings is particularly perilous for parents who return to the family court. For many of these parents,