When someone speaks of an “unfit parent” an image of an abusive and/or neglectful mother or father often comes to mind. But what is really meant by an unfit parent according to law? Is an unfit parent someone who simply abuses his/her children or shows serious neglect? And what are the consequences of a parent being declared unfit?
Parents are deemed to be fit. Therefore, anyone alleging that parents are unfit must prove such an accusation. Usually, and especially when they are of a tender age, children are allowed to live with the mother and the father having visitation rights unless, obviously, the father contests it. On the other hand, whenever the mother is deemed to be unfit and the father is deemed to be fit, then the children will be assigned to live with the father. This, however, does not imply that whenever the children live with the father, the mother is presumed to be unfit.
What if both the mother and the father are deemed to be unfit? Should the child be placed under a care order or should care and custody be assigned to the child’s relative, such as a grandparent?
In AB vs CD, decided on May 22, 2009, the Civil Court (Family Section) assigned the care and custody of the children to the father because the mother was deemed to be unfit. However, an application by the children’s grandmother was filed to have the care and custody of the children assigned to her, claiming that the father was unfit to take care of the children. The court upheld the request.
A parent is deemed to be unfit when s/he is not the ideal parent and it is not in the best interest of the child to be brought up by such parent. The best interest of the child, like in any other familial situation, is of utmost importance.
But what makes one an unfit parent? In various cases, the court deemed an unfit parent a person who has some sort of addiction, be it alcohol, drugs or gambling, or is trapped in certain vices such as prostitution, or is abusive towards the children or shows signs of serious neglect towards the children.
But what about a mother who has been diagnosed as suffering from schizophrenia? Can she be declared an unfit mother and have her children put under a care order?
The answer can be found in K and T vs Finland where it was found that the Finnish authorities had breached the mother’s right to family life under article 8 of the European Convention on Human Rights. The court added that public care is simply a temporary measure only and the working aim should always be to reunite the children with the parents.
The majority of unfit mothers “seem physically to neglect and psychologically to abuse their children” whereas an unfit father leans on physical abuse (Phyllis Chessler, Mothers On Trial: The Battle For Children And Custody, 2011, Chicago, pp 55-56).
A care order is, among other reasons, issued when a child is in need of care, protection and control. The law states that such is expected from a “reasonably good parent”. Consequently, according to law, this would be lacking if the child is falling into “bad associations” or “is seriously exposed to moral danger” or “such lack of care, protection or guidance is likely to cause the child or young person unnecessary suffering or seriously affect his health or proper development”.
Therefore, it seems that the reasons that warrant a care order, and which depend directly on the child’s parents, are lack of “care, protection and control”. That being the case, if a parent, irrespective of his/her personality attributes, fulfils the duty of providing care, protection and control to the children, then the children should not be subjected to a care order.
On a different note, the term “control” is quite unfortunate in this day and age because children are not to be controlled by their parents but the parents are to be responsible for them. Hence, the usage of “parental responsibility” in foreign case law. Nevertheless, it is safe to assume that by “control” it is meant “responsibility” just as parental authority is taken to mean parental responsibility.
So does an unfit parent imply that a parent is not providing the child with the necessary “care, protection and control”? It seems so and this is also the case if such a child ends up in bad company or is exposed to moral danger. For instance, a parent who has an addiction and this addiction is preventing the parent from providing “care, protection and control” or due to that addiction the child is exposed to moral harm or is frequenting bad company, then a care order is in order.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.