Women, drug control and the law
Author: J. CONNORS
Pages: 41 to 47
Creation Date: 1990/01/01
Legal regulation of drugs in the United Kingdom of Great Britain and Nothern Ireland has tended to centre on the criminalization of the production, supply, possession, purchase, use and abuse of drugs, in which women and men are generally treated similarly. Women have, however, received differential legal treatment in the context of their role as mothers, where drug use can result in what may be considered the ultimate sanction against drug use for a woman: the loss of custody of a child vis--visanother parent or guardian, an adopter or even the State. Even drug use prior to the birth of the child can be relevant.
Legal regulation of drugs in the United Kingdom of Great Britain and Northern Ireland has taken a number of forms, some of which have resulted in the prohibition of a particular drug in certain circumstances, while others have resulted in the widespread availability of certain drugs. Legal regulation depends on which of the following four broad categories into which the drug is seen to fall: intoxicating liquor, barbiturates, diamorphine/heroin or cannabis.
Heroin and barbiturates fall within the primary definition of medicinal products in the Medicines Act 1968, which includes any substance to be used by human beings for medicinal purposes and which encompasses treating or preventing disease and otherwise preventing or interfering with the normal operation of a physiological function, whether permanently or temporarily. Heroin is also classified as a controlled drug under the Misuse of Drugs Act 1971. It is placed under stringent restrictions, being defined as a class A drug with the result that the maximum penalties available where it is unlawfully possessed are greater than in the case of cannabis or barbiturates, which are also controlled by the Act ( , chap. 3). Alcohol, in the form of intoxicating liquor, including spirits, wine and beer, is regulated by the Licensing Act 1964 and the Alcoholic Liquor Duties Act 1979.
The primary legal response to the question of regulation of the production supply, possession, purchase, use and abuse of drugs is that of criminalization, unless exceptional circumstances are held to exist. Though it might be argued that the personal and social effects of the abuse of intoxicating liquor are just as significant as those of other drugs ( , chap. 2), it is the user who may, apart from restrictions relating to age and competence, determine where, when and how much he or she is to consume. 1
While various social and educational approaches to the use of drugs have been implemented in order to confront the problem of drug use 2 and at least some of these have dealt with the specific needs and interests of women, the response of criminal law has been, typically, gender blind. Though it appears that female drug offenders, whether they be producers, suppliers, possessors or users, may receive more lenient sentences than male offenders, no comparative research exists to prove or disprove such an assertion and it may well be a perspective held of the criminal justice system generally, a perspective that has been argued to be ill-founded  .
It is certain, however, that women who are associated with drugs are treated in a particular way where the law relating to children is concerned. A mother's drug use may result in her unsuccessfully contesting private child cases, such as disputes between spouses or adoption, or even result in her finding her child in the care of the State. Indeed, recent cases suggest that the ultimate sanction that a woman may face in the context of drug use is the loss of her child. Furthermore, and this is a sanction that would have no relevance to a man, it appears that drug-related behaviour that occurs prior to the birth of the child may ultimately lead to such a loss.
For the past decade, it has been possible for an unborn child in England and Wales to bring an action against a person who is responsible for any injury that might befall the child prior to its birth. The Congenital Disabilities (Civil Liability) Act 1976 (England and Wales), while displaying an awareness that the develop- ment of a child is a continuous process stretching back into the time before birth, did not give an unborn child any rights under its provisions. In order to have a right of action for any negligent activity that results in injury, the Act requires that the child be born and have an independent existence apart from its mother, providing for liability only if "a child is born disabled" (sect. l(l)), "born" meaning "born alive". Thus, no cause of action is established by the Act in circum- stances where the child dies by virtue of some act of negligence that affects it while it is in the womb. Furthermore, the Act does not impose any liability on a mother, in the usual course of events, for any negligent act or omission, liability being imposed only in circumstances where the tortfeasor would have been "liable in tort to the parent or would, if sued in due time, have been so" (sect. 1(3)).
This formulation was the result of the deliberations of the English Law Commission ( , paras. 54-65), which chose to reject any proposition that a child be able to sue its mother for pre-natal injuries caused by her negligence on the grounds of social policy arising out of a concern for family cohesion. The Commission was particularly wary of any litigation that might be brought on behalf of the child which claimed that the mother's failure to give up cigarette smoking or alcohol or follow a particular dietary r6gime during pregnancy had caused it injury. The existence of such an action would be a fertile ground of matrimonial and parental conflict leading to litigation. The Commission did take the view, however, that different considerations applied to injury resulting from a result of a road accident caused by the pregnant woman's negligence; it believed that the existence of third-party insurance would prevent any risk of a child's claim against its mother causing family conflict.
#1Restrictions accompanied by criminal sanctions exist to regulate the supply of alcohol, the time that such supply may occur, where such supply occurs, and the age the user must have reached (Licensing Act 1964, as amended).
2Farrier argues that the perception of the drug problem is misplaced and unsupported by empirical evidence ( , chap. 2).
The Congenital Disabilities (Civil Liability) Act 1976 thus imposes a duty of care on a pregnant woman with respect to her unborn child only in the context of driving a motor vehicle. Beyond that, the Act does not feature as a means of controlling her pre-natal behaviour. Thus, this legislation cannot serve as a method of regulating female behaviour with respect to drug and alcohol use during pregnancy. The most that can be said is that the existence of the Act serves to provide an educative device in this context, perhaps reminding pregnant women of the consequences that their conduct might have.
Although a woman does not face the possibility of tortious proceedings arising out of her pre-natal behaviour serving as a means to regulate her habits and life-style, such behaviour will be relevant in any custody proceedings. Any private dispute concerning the custody of children under the age of 18 is governed by a broad policy principle known as the "welfare" or "para- mountcy" principle. According to this principle, if there is any question concerning the custody or upbringing of a minor, the court shall regard the welfare of the minor as the first and paramount consideration ( , sect. 1). This formulation governs decisions regarding access and custody in disputes involving parents and guardians, custodianship and wardship ( , sect. 9, and [51, sect. 8). In case of adoption and public welfare care, the child's welfare is highly relevant, but is the first rather than the paramount consideration ([61, sect. 3).
Despite the differing statutory formulations, it is clear that the child's welfare is the priority consideration in all disputes concerning who should have the care of a child. Any parent's behaviour that suggests that a child's physical, psychological or social welfare is at risk will have an adverse effect on the parent's claim to maintain the care and control of, or even access to, the child. Welfare is a vague concept, it being left largely to the individual judge to determine how the welfare of a particular child will be best served. The likelihood of a judge concluding that a child's welfare would be promoted if the child remained in the care of a drug-using parent, however, is remote. Indeed, a negative conclusion might follow even if it were proven that the child's physical health was at no risk from the behaviour of its parent. The social and psychological effects the child might suffer would be sufficient to warrant alternative care.
Loss of custody of or access to a child is a risk that often confronts parents irrespective of gender, although a mother who was a drug user would probably be treated more adversely than a father who was a drug user. Thus, a woman's petty drug use might be regarded as putting her child's welfare at risk. Of particular interest is the approach courts have been prepared to take regarding women who take drugs while pregnant. This issue, which faced the English courts for the first time in late 1986, proved so contentious that appeals were taken to three forums, culminating in an appeal to the House of Lords, the highest court in the English curial hierarchy.
The particular facts of case A, which involved a minor and the Berkshire County Council  , were straightforward. A registered drug addict gave birth to a child who suffered from drug withdrawal symptoms. The mother of the child had been taking drugs for over 10 years. Although aware that drug-taking during pregnancy could damage her child, she persisted in the excessive use of methadone, both orally and by injection, a habit she continued after the birth of the child (she was still addicted at the time of the initial hearing). The mother never exercised physical care and control over the child; the child was initially cared for by hospital staff in the intensive care ward and then by the local authority pursuant to a short-term place of safety order and various care orders, including one made by the Reading Juvenile Court, which became the subject of appeal.
The issue that confronted the various appeal tribunals was a narrow one: whether the magistrates had jurisdiction to make such a care order where any prejudice to the child had been caused by the mother's conduct before the child was born. Resolution of this question hinged upon the proper interpretation of section 1 of the Children and Young Persons Act 1969, which provides that a juvenile court may make a care order or other order if it is of the opinion that the child's proper development "is being" avoidably impaired or neglected and that the child is in need of care or control and is unlikely to receive it unless the court makes an order in respect of the child. The statutory formulation is framed in the present tense. Accordingly, the mother of the child raised two arguments: first, at the time that the Reading magistrates considered the issue, the provision could hardly be satisfied because the child, who was in the care of the local authorities, was perfectly safe. Secondly, and more importantly, even if events occurring prior to the child's birth could be taken into account, a contention that the mother disputed, such events were irrelevant to a consideration of her capacity and the child's welfare after birth, as the mother had never had physical care of her child after it had been born. In effect, the mother argued that it was impossible to say that any of the situations that section I was intended to address had arisen because her entire conduct vis--visthe child related to the period before it was born and her caring capacities after its birth had never been tested.
The mother's arguments were successful in the first appeal court, but both the Court of Appeal and the House of Lords concluded that the statutory formulation in the Children and Young Persons Act, particularly the concepts of development, health and treatment, were continuing concepts. Thus, it was decided that the words "is being" in the formulation denoted a continuing rather than an instant situation, allowing the court to make a care order under the statute to consider whether, at the point of time immediately before the process of protecting the child was put in motion, there was a continuing situation of impairment, neglect or ill-treatment. In so doing, the court had to look not only at the present but also the past; and in respect of past events it was permissible, in the determination of whether a child's proper development "is being" avoidably impaired, for the juvenile court to consider events that had taken place before the child was born, particularly those that had had an adverse effect on the child's development or health. As a corollary, the court was also empowered to take into account whether the situation appeared likely to continue in the future. The court concluded that because the mother had continued to use narcotic drugs during and after her pregnancy there was ample evidence to justify a decision that the child's proper development was being avoidably impaired or neglected or that it was ill-treated and that the fact that the child had never been in her care was irrelevant.
Thus, the House of Lords concluded that the use of the present continuous tense in the statutory formulation denoted that the child's position had to be looked at in a continuum. In so doing, it concluded that treatment by a mother of her child before birth was of vital legal significance; it also raised the question of what other maternal conduct during pregnancy was likely to, or at least could, lead to the removal of a child from its mother.
In the context of women and narcotic use, the decision described above is a critical one that raises unsettling questions. The committal of a child to care is a last resort for the child's benefit and should not be used as a method of punishment for parents who might be viewed as inadequate or reprehensible in some way. Certainly, the mother of the child acted illegally and irresponsibly, both before and after pregnancy, and could hardly be classified as an ideal parent. The issue that confronted the courts, however, was not her suitability and skill as a parent but rather her conduct before the birth of her child, her conduct before she ever became pregnant. In other words, her attitude or behaviour towards the child after its birth was irrelevant; her abilities as a parent had never been tested as she had never had control of the child. Since the mother was a registered drug addict, it might have been possible to monitor her parenting skills were she given the care of the child for a short period of time. Yet no examination was ever made of whether care and control of the child would have had a beneficial effect on her life-style.
Beyond the criticisms that can be made of the decision reached in case A are broader questions. It is not impossible for an addict to be a perfectly competent parent, nor is it impossible for the responsibilities of parenthood to have a beneficial effect on parents' behaviour. Furthermore, the question of the appropriateness of the use of care proceedings as a method of modification of the mother's pre-natal behaviour was not addressed, nor was there any indication that the decision was confined to narcotic abuse, thus leaving open to debate situations involving pre-natal alcohol or tobacco usage. It was made clear, however, that there were limits to the use of care orders in these circumstances and that such proceedings were justifiable only when there was a likelihood that the state of affairs revealed by the mother's pre-natal behaviour would continue into the future. In other words, a care order is justified only when the court is satisfied that, by reason of the mother's continuing addiction to drugs, the child's proper development may continue to be avoidably prevented or her health may continue to be avoidably impaired in the future.
The decision reached in case A presents a singular method of control of women drug users. It can be argued that the decision balanced the needs of the child concerned against the right of the mother to conduct her life as she chose and reached a pragmatic and justifiable conclusion on the particular facts presented, although it left a number of questions unanswered. In case B  , however, which occurred later, there was an attempt to curtail more severely maternal activity during pregnancy in order to protect an unborn child. A known drug user disappeared during her pregnancy and, because it appeared that she had no financial support, the local authorities applied to have the unborn child made a ward of the court. The Court of Appeal noted that the wardship process was an old one allowing the court. to exercise a parental jurisdiction in accordance with the principle that the paramount consideration was the child's welfare. It refused, however, to make the order, concluding that the jurisdiction of the court to exercise such parental authority did not begin until the child had an existence independent of its mother. That, the Court of Appeal opined, was a restriction arising out of the fact that the possibility of such proceedings would create conflict between the existing legal interests of the mother and those of the unborn child and that such an order would be insuperably difficult to enforce against a recalcitrant mother. In other words, notwithstanding the fact that pre-natal protection in the form of an order such as wardship would benefit the unborn child more than a care order on birth such as allowed in case A, the English courts concluded that such protection would amount to an unacceptable violation of a pregnant woman's right to self-determination, even if she was committing a criminal offence such as taking drugs. This analysis arises from a reasoned position that appreciates the fact that if the wardship process could be used as a method to force a woman to refrain from drug abuse for the sake of her unborn child, the process could be used to force her to refrain from other conduct or engage in certain activities for the sake of her unborn child.
Although the English courts are not prepared to go to extremes regarding protective intervention, intervention in the life of a female drug abuser can be Draconian in a fashion differential to that of a man. If a woman continues her habit during her pregnancy, she will run the risk that her child will be taken into governmental care at birth and it will be difficult for her to re-establish care of the child. This will be so even if the parenting skills of the woman have never been tested and the effect of drug use by a mother on a child whom she keeps free of drugs has not been the subject of research. While criminal penalties may serve to curb drug abuse to some extent, for a pregnant mother the risk of losing her child may well present the ultimate sanction.
D. Farrier, Drugs and Intoxication (London, Sweet and Maxwell, 1980).02
S. M. Edwards, Women on Trial (Manchester, Manchester University Press, 1984).03
Law Commission Report, No. 60.04
Guardianship of Minors Act 1971.05
Domestic Proceedings and Magistrates' Courts Act 1978.06
Children Act, 1975.07
All England Law Reports 1987, vol. 1, pp. 20-45.08
Al/ England Law Reports 1987, vol. 2, pp. 193-202.