2 ‘Drugs’, gender and the family

Although children have long been a focus for concerns about drugs (Courtwright, Reference Courtwright2001; Flacks, Reference Flacks2018), parental substance use emerged as a specific and significant policy concern in the early 2000s following the release of a flurry of reports into the ‘hidden harms’ experienced by children. Authored by the Advisory Council on the Misuse of Drugs (ACMD), one of the first, and most influential, of these was Hidden Harm: Responding to the Needs of Children of Problem Drug Users, published in 2003. According to the report, ‘Parental problem drug use can and does cause serious harm to children at every age from conception to adulthood’ (Advisory Council on the Misuse of Drugs, 2003, p. 3). Reports were also produced by non-governmental organisations (Bancroft et al., Reference Bancroft2004; Tunnard, Reference Tunnard2002) and researchers warned that, given that 2 to 3 percent of all children in the UK under the age of sixteen were estimated to have parents with drug problems, ‘it is an issue to which we have woken up late’ (Barnard and McKeganey, Reference Barnard and McKeganey2004, p. 552). A later publication by the Children's Commissioner for England highlighted the dearth of services for children affected by parental alcohol misuse (Adamson and Templeton, Reference Adamson and Templeton2012) and some researchers subsequently argued that ‘Drug-addicted parents should be given 12–18 months to get drug-free or lose their children’ (Children and Young People Now, 2009). The relatively recent surge in concern for parental substance use has dovetailed, with an increasing policy focus on the responsibilisation of ‘failing’ parents (Lister, Reference Lister2003) involving the use of coercive measures such as Parenting Orders to target those who fall short (Holt, Reference Holt and Squires2008) and the expectation that mothers, in particular, police themselves as incubators of future citizens (Gillies, Reference Gillies2005; Reference Gillies2007; Cain, Reference Cain, Bridgeman, Keating and Lind2011). Working-class or socially excluded mothering practices have been subject to particular scrutiny in market-based societies and parents are increasingly seen as primarily responsible – to the exclusion of structural variables such as poverty and class – for guaranteeing their future as economically productive citizens (Gillies, Reference Gillies, Wagg and Pilcher2014).

Addiction, although a contested and ambiguous term, has been called ‘one of liberalism's most despised, and most necessary, creatures’ because it threatens (and reinforces) idealised expectations of the autonomous, individualised subject (Fraser and Valentine, Reference Fraser and Valentine2008, p. 172). Since the essence of addiction is usually located in bodily pathology, deficit or vulnerability (Weinberg, Reference Weinberg2002), ‘drug users are viewed as materially constituted subjects whose very embodied “essence” is to be marked as deviant, abject, and “other”’ (Campbell and Ettorre, Reference Campbell and Ettorre2011, p. 2). If societies are defined by their opposition to addiction (Fraser, Reference Fraser2017, p. 130; Derrida, Reference Derrida1993; Keane, Reference Keane2002) and drug use continues to attract moral disapprobation, it might be expected that evidence of consumption would challenge norms about responsible parenthood. Mothers and fathers who use substances are not, however, exposed to equal levels of surveillance, stigma and intervention. Although research on female substance use remains relatively sparse (Moore and Measham, Reference Moore, Measham and Mistral2013), women consumers tend to be portrayed as doubly deviant and more disturbed than their male counterparts because of their transgression of traditional gender roles (Ettorre, Reference Ettorre2007; Campbell and Ettorre, Reference Campbell and Ettorre2011). Good mothers do not use substances, and those that do (particularly if pregnant) are portrayed as negligent and unfit. Couvrette et al. explain how a ‘good mother’ is expected to be

According to Campbell and Ettorre (Reference Campbell and Ettorre2011, p. 179), women's drug addiction has thus consistently been framed within the ‘domain of social reproduction’ in a society in which ‘women are assumed to be the linchpins of social order, family life, and biosocial (and cultural) reproduction’. In the US, social workers sought to regulate mothers suspecting of using substances, including cocaine and marijuana, as soon as they were criminalised in the early 1900s (Boyd and Carter, Reference Boyd and Carter2011). In the late 1950s and early 1960s, maternal drug use was identified as a risk to the developing foetus and there was an emergence of ‘new ideologies’ about ‘dangerous’ drug-using mothers (Boyd and Carter, Reference Boyd and Carter2011, p. 5; Boyd, Reference Boyd1999; Reference Boyd2004). The ‘crack scares’ of the 1980s similarly identified mothers as a particular threat to the health, well-being and survival of their infants, and women faced criminal charges for giving birth to infants who failed drug tests (Roberts, Reference Roberts1991).

Women addicts are expected to enter treatment not necessarily for themselves, but ‘in order to become stable enough to provide social stability for others – often for their male partners and children’ (Campbell and Ettorre, Reference Campbell and Ettorre2011, p. 179). Women may well try to conceal their drug and alcohol problems from health and social services – a choice that, for Campbell and Ettorre (Reference Campbell and Ettorre2011, p. 180), should be viewed as a rational response to the social stigma faced by drug-using women and might equally be understood as a reasonable reaction to the threat of child removal (Barnard and Barlow, Reference Barnard and Barlow2003). Research with service providers has found that substance use by women may be framed as ‘essentially harmful’ via a ‘gendered responsibilisation of women as foetal incubators and primary caregivers of infants’ (Benoit et al., Reference Benoit2014, p. 260). It has been suggested that risk has supplanted deviance as the predominant governing discourse in advanced liberal societies (Moore and Valverde, Reference Moore and Valverde2000) and that this has been incorporated into policy on parental substance use (Bancroft and Wilson, Reference Bancroft and Wilson2007, p. 320). Family legal scholars will be familiar with the framing of women's behaviour according to their reproductive role and also to the ways in which questions relating to children's rights and welfare may serve as forces for normalisation or ‘codes’ for other concerns (van Krieken, Reference Krieken2005, p. 33; Berns, Reference Berns2000; Reece, Reference Reece1996).

3 Approach

In tackling questions relating to the constitution of ‘drugs’, addiction and parenting in the family court, the approach taken in this paper aligns with a body of research, rooted in STS and using theoretical perspectives developed by Jacque Dilleuze, Bruno Latour, John Laws and AnneMarie Mol, among others, that reflects on the ways in which problems such as addiction are ‘made’ within (rather than pre-existing in) scientific, health and legal discourses. According to this perspective, addiction, the addict and other ‘realities’ such as ‘drugs’ and their harms are unstable objects that are performed in court rather than simply ‘identified’ or diagnosed as pre-existing behaviours or objects. Such approaches are informed by the recognition that addiction is a concept that defies any clear and consistent definition (Fraser et al., Reference Fraser, Moore and Keane2014) and that the ‘drugs’ label is a regulatory category that has no material essence nor any coherent or stable propensity to cause harm. This is not a purely relativist or rhetorical position, but rather follows a stream of critical scholarship that, instead of seeking to uncover the ‘truth’ about drugs, endeavours to understand the ways in which drug effects are discursively produced and what consequences may ensue (Fraser et al., Reference Fraser, Moore and Keane2014; Seear, Reference Seear2015; Race, Reference Race2011; Hart and Moore, Reference Hart and Moore2014). Terms such as ‘addiction’ and ‘drugs’ tend to be presented as fixed and coherent despite their lack of essence or material character (Law, Reference Law, Dominguez Rubio and Baert2011) and are ‘made’ within an ontological politics of knowledge production (Mol, Reference Mol2002). For example, a critical approach to causality rooted in assemblage thinking posits that causes and effects are ‘ontologically inseparable from epistemological practices’ (Hart and Moore, Reference Hart and Moore2014, p. 398). As Hart and Moore go on to explain in the context of alcohol epidemiology:

When considering causality in respect of drug effects and parenting, one might therefore expect a range of agential forces to be relevant in the assemblage of drug effects beyond the properties of the drug itself (Duff, Reference Duff2012). This approach departs from more established social constructionist perspectives by acknowledging that the process of making and enacting particular concepts is not stable and finite, but open to development and re-constitution in different contexts. It is thus important to remain attendant the ‘discursive dynamics’ (Seear and Fraser, Reference Seear and Fraser2014) of objects and to interrogate the ‘illusion’ of stability and coherence pervading discourses on drugs, particularly given the stigma and discrimination with which drug users tend to be confronted.

The court provides particularly fertile ground for the making of realities, since it is a place in which ‘ideas of truth and justice are co-constructed’ (Jasanoff, Reference Jasanoff1995, p. xiv). Kate Seear (Reference Seear2017) has observed how legal systems position drug and alcohol ‘problems’ as central to legal deliberation. As a result, the law

It is argued below that, in the supposedly neutral and objective evaluation of evidence, the family court determines how the best interests of the child might best be served and, in so doing, shapes and fashions those ‘realities’ (bad parenting, drugs, addiction and so on) that it presumes to rectify. The purpose is not to argue that the judicial version of reality is incorrect, as this would suggest that a correct, pre-existing reality is ‘out there’ ready to be discovered. Rather, it is argued that, by identifying the tensions between different versions of realities, there is an opportunity for destabilising existing assumptions and offering new entry points for considering the relationship between substance use and parenting.

5 Determining the risk to children

The ways in which drug use was constituted as risky in the judgments varied, particularly in respect of what levels of consumption could be deemed problematic. As indicated above, it has been established that the use or ‘abuse’ of drugs and alcohol does not itself authorise a child's removal from his or her family. In Re B,Footnote ⁹ Lady Hale expressed it as follows:

While emphasising that the abuse of alcohol or drugs does not automatically authorise the child's removal, it is nevertheless reinforced here as a ‘bad behaviour’ and an ‘unattractive trait’. In Bath and North East Somerset Council v. The Mother and Others,Footnote ¹⁰ in which evidence of drug use was particularly critical to the decision to deny care to the mother, His Honour Judge Wildblood Q.C. argued that

Like criminality, the use rather than ‘abuse’ of drugs is thus framed as a behaviour that is problematic and, one might infer, enough to impact on a parent's right to care for a child, but not the rights of children to be parented. Other judges suggested that any drug use can be enough to revoke care. In K and H Children, for example, Lord Justice Thorpe said:

Evidence of drug use has been used as reason to preclude contact in private law cases,Footnote ¹² although some judges have distinguished between different levels of use, suggesting that only ‘excessive’ consumption of drink or drugs is relevant, discussed further below.Footnote ¹³ In the child-abduction case of Re A,Footnote ¹⁴ drug-taking was described as ‘catching the bacillus’ (para. 92), formulating drug use as threatening and infectious (disease-like), and, in Re B (A Child) (Care Proceedings: Threshold Criteria),Footnote ¹⁵ it was determined that a father's ‘drug abuse’ would ‘come much higher that the learning difficulties of the parents, or the “personal character defects” of the mother’ (para. 209).

In several judgments, there was an attempt to be more precise about the risks posed. In Re: G (Care Order),Footnote ¹⁶ the risk of ‘getting hold’ of drug paraphernalia that had been left in the mother's bedroom was judged to indicate negligence on her part (para. 21). Judges suggested that children's knowledge of drug-taking by parents and other adults constituted harm in itself as a result of the potential transmission of deviancy. In Bath,Footnote ¹⁷ for example, H.H.J. Wildblood Q.C. said that the father had neglected to consider the risks ‘that his lifestyle [including drug use] poses for [the child]’, including

Whether the parent had taken drugs at home or in the presence of, or while caring for, a child was also pertinent in GA v. LA, M, F, BH.Footnote ¹⁸ According to Mr Recorder William Tyler Q.C.:

It was thus not only behaviours described as addiction, problem use or dependence that posed risks to children because of the potential for neglect, but ‘drug environments’ and occasional or recreational drug-taking. Drugs were understood to lead, inevitably, to exhaustion and being ‘jaded’ (thus diminishing parental capacity) the following day. While not able to name the precise risks of ‘drug cultures’, asserting that they were ‘nonetheless real’ stabilised the threats posed by drugs as true and definitive, and identified drug users as deviant. At the same time, this suggested that drug harms were not reducible to the pharmacological risks of the substances themselves, as further discussed below. Similarly, in the Matter of F (Children),Footnote ¹⁹ a decisive question for the child welfare officer was whether the father was ‘still involved in the drug culture’ and whether the child had ‘been exposed to any of that’ (para. 10). The potential risks of an intoxicated parent were further raised in a number of cases, although the distinctions between ‘mere’ consumption, intoxication and regular or daily use were not clarified. Being under the influence of substances, including alcohol, has variously been found to pose a ‘real risk’ of causing hurt to a childFootnote ²⁰ or to result in the child ‘undoubtedly suffering significant harm’.Footnote ²¹ Evidence of ‘binge drinking’ has also been held against a mother.Footnote ²² In general, there was a lack of specificity or consistency regarding the risks and nature of both drugs and problematic use, although the judgments nevertheless largely asserted the agentic power of drugs to ‘do’ harm, as discussed further below.

6 Producing ‘drugs’

Legal and policy discourses are generally considered to reify the pharmacological properties of substances and their agentic power to produce effects, such as corrupting the autonomy and rationality of ‘addicts’, independently of other variables (Keane, Reference Keane2002; Fraser et al., Reference Fraser, Moore and Keane2014; Hart and Moore, Reference Hart and Moore2014). The Drugs Act 1971 penalises drugs offences based on the ‘class’ of substance and the purported severity of effects and risks according to chemical composition, as if these are stable and coherent (Shiner, Reference Shiner2009), and this system of classification imbues drug policy and legal practice. In the cases surveyed, a range of drugs – both licit and illicit – were constituted as stable entities that all had potentially deleterious effects on the ability to parent. In Re FC (A Child: Care or Supervision Order),Footnote ²³ caffeine and energy drinks were determined to be ‘drugs’ and therefore ‘addictive’ substances in addition to cannabis, alcohol and legal highs. The doctor in the case testified that it would be ‘almost impossible’ to accurately diagnose the father's mental health

The term ‘drug’ might here be understood as a floating signifier, potentially attached to any substance in order to signify excess or deviant usage – an assignation that will also depend on the identity and social position of the consumer (Goffman, Reference Goffman1963). Although the social and economic background of the parents in these cases is unknown, researchers have pointed out that separating those whose drug use is seen as ‘recreational’ from those for whom it is deemed ‘problematic’ rests on distinctions that are heavily classed, raced and gendered (Valentine and Fraser, Reference Valentine and Fraser2008). Fraser, Moore and Keane (Reference Fraser, Moore and Keane2014) have further observed that ‘addiction’ has been deployed to encompass an ever-growing range of behaviours. Excessive use of prescribed benzodiazepines were found, in the judgments, to impede good parenting,Footnote ²⁴ although anabolic steroids, while considered to be drugs, were not judged to pose any risk to children.Footnote ²⁵ It was generally accepted that opioid substances prescribed to users of heroin as replacement therapies, and which have very similar chemical compositions, were also ‘drugs’, although their use was also not thought to pose risks. In Re: A (A Child),Footnote ²⁶ for example, the mother was considered to have

However, in Re A (Children),Footnote ²⁷ the mere ‘presence’ in the family home of the mother's uncle, who was taking methadone, also used to treat heroin withdrawal, was understood to indicate a possible threat to the child concerned, although it is not clear whether the risks emanated from the substance or the uncle's supposed addiction. In R (Children),Footnote ²⁸ the father, described by the judge as ‘effectively addicted to the drug’, accepted that ‘his abuse of cannabis made him an irresponsible father and an irresponsible partner to the mother of his children’ (para. 13, emphasis added).Footnote ²⁹ The mother's ‘misuse’ of cannabis was also an issue in Re A (Children) Footnote ³⁰ (para. 28), although consumption of the substance, while looked upon unfavourably, was not considered to be unconducive to good parenting in Swindon Borough Council v. NA, AW, DWR, The Children,Footnote ³¹ where the judge stated that

Reflecting the lack of clarity or consistency about drug effects, it thus depended on the case as to whether the consequences of cannabis or opioids included, for example, diminished parental capacity. This was also the case for other substances. In X County Council v. M, F, Z (a Child) by His Guardian v. MGPs,Footnote ³² the consultant psychiatrist was

However, in Re AA, BB (Minors),Footnote ³³ the judge, in the transcript, included testimony from a psychiatrist who said that the father was ‘not an addict, but rather someone who chooses to take cocaine’ (para. 39), suggesting that use of the drug did not necessarily impact on the ability to parent. In addition to framing addiction as a condition in which ‘choice’ is extinguished and users are deprived of agency, the difference between the conceptualisation of crack and powder cocaine, which was the subject of potential concern in the second case, is significant. Although the pharmacological difference between the two forms of cocaine is marginal, crack attracts greater condemnation and invites harsher penalties in ways that are again heavily racialised and classed (Alexander, Reference Alexander2012). Determining the effects of cocaine did not, therefore, depend on the unique properties of the substance, but rather points to the mutability of drugs within discourses of knowledge production.

7 The agency of substances

Where drugs, or their use, were asserted to be problematic, their agentic power to produce certain effects was repeatedly asserted in the judgments as a collateral reality. Although drug effects were thus unstably constituted, when it came to determining harm, they were consistently composed as singularly and causally responsible for the damage caused to individuals and families. Although mediating or associated factors could be mentioned, they did not displace drugs and alcohol as the primary instigators of harm. In Bath,Footnote ³⁴ the evidence provided to the court by the guardian was as follows: ‘all four children have experienced a chronically unstable, chaotic and unsafe home environment due to their mother's drug misuse, and the accompanying issues of neglect of their basic needs and poor emotional attunement’ (para. 7).

It was argued by H.H.J. Wildblood Q.C. that the case demonstrated ‘the truly pitiful plight of a mother caught up in drug addiction’ (para. 1), hinting at the particularly sad and pathetic story of a mother who uses substances (the gendered implications of which will be returned to in due course). He went on:

The mother at the centre of the case had herself been in care during childhood, having, according to the judge, ‘been beyond the control of her parents’ (para. 3). Children in care tend to be subject to considerable disadvantage in respect of their mental health, educational provision, propensity to be involving in offending and job opportunities (Zayed and Harker, Reference Zayed and Harker2015; DoE, 2016). She had her first child at the age of seventeen and was, according to the judge, ‘addicted’ to class A drugs by the age of twenty (para. 4). H.H.J. Wildblood concluded that

In addition to identifying drug use as the primary agentic instigator of the family's demise, suggesting that the mother (or anyone else) may have begun taking drugs because it seemed ‘cool’ positioned abstinence as the only mature and rational drug-taking decision. It was also notable in the judgment that, whereas drug addiction was isolated as causally responsible, evidence of child harm persisted even during periods when the mother was abstinent: ‘Following [the child's] birth in 2013 there were periods when the mother appeared to be on top of her drug addiction although there were more reports of the neglect of the children and A's school poor attendance’ (para. 5).

Later in the judgment, it was similarly stated that

In London Borough of Wandsworth v. W,Footnote ³⁵ drugs were similarly cited as responsible for ‘ruining lives’, although the mother in question had had a ‘very difficult childhood’ (para. 10) involving a period in care, due to her own mother's mental health problems and her father's violence. At the age of sixteen, she had been referred to a psychiatrist following evidence that she had been cutting herself. For Mrs Justice King, however, this was

The causal relationship between the diagnosis of personality disorder, drug use and childhood trauma was conceived as temporally linear; adversity led to a personality disorder that caused the drug problem. It was the drugs that had ‘dominated’ her life (and to where she was ‘driven back’), suggesting attenuated volition and control as a direct, casual consequence. The proceedings were also described as arising ‘out of the mother's long history of serious substance abuse and her inability to date, notwithstanding her genuine desire to care for her children, to remain abstinent from drink and drugs’ (para. 2). Similarly, in Bath, according to the judge, ‘the mother said, unsurprisingly, that her addictions led her into a downwards spiral of depression where she could not cope with demands of life’ (para. 21). Temporality was again key: the ‘real’ problems always began with drugs.

In Local Authority,Footnote ³⁶ the judge in the lower court had noted that family life had ‘deteriorated into chaos and neglect … the causes of this are complex and intertwined’, and that there had been ‘serious domestic violence’. However, she reified drugs as the master factor in contributing to family breakdown, arguing that ‘[T]his case highlights the terrible, terrible cost that drug use can have on a family’ (para. 15). Similarly, in the higher court, the mother was also described as having ‘complex needs as a consequence of her upbringing, her life-style choices, and specifically her drug-abuse’ (para. 127, emphasis added). In LD for the Adoption of Child CH (Scottish),Footnote ³⁷ it was the mother's ‘ability to overcome the drug addiction which is at the heart of the problem’ (para. 11), whereas, in S (A Child) (Adoption Order or Special Guardianship Order),Footnote ³⁸ the involvement of both parents in the ‘use of drugs … led to the now familiar situation of an ensuing chaotic life-style in squalid home circumstances resulting in inappropriate care of the child’ (para. 83). The purpose here is not to suggest that those involved in the judicial process purposely make such causal links, but they do reflect the inclination to locate the cause of a variety of ‘problems’, from crime to family breakdown, in individual drug-using subjects (Stevens, Reference Stevens2011; Seear, Reference Seear2017; Valentine and Fraser, Reference Valentine and Fraser2008).

8 Gendered judgments

As noted above, gender has been identified as intrinsic to the ways in which addiction and substance use are understood. Using Karen Barad's (Reference Barad2003) notion of post-humanist performativity, Dwyer and Fraser (Reference Dwyer and Fraser2017) have drawn attention to the ways in which research itself, and particularly diagnostic tools, can help to materialise gender by, for example, constituting men and women's drug use differently. According to Moore and Measham (Reference Moore, Measham and Mistral2013, p. 83): ‘“Woman as victim” remains the dominant model through which women's relationships with substances and with other people are understood; a model often internalized by women themselves.’ Paternalistic accounts of victimhood, pathology and vulnerability, which have historically infused both academic and public discussions about female substance users (Ettorre et al., Reference Ettorre2008, p. 3), have thus dovetailed with discourses of responsibility and blame. Judicial constructions of the life narratives of mothers tended to draw on either bad choices and deviant behaviours, or the ‘tragic’ histories of women caught up in cycles of deprivation and abuse. Personal culpability, and a dereliction of duty, nevertheless held particular explanatory force during consideration of the difficulties experienced. The permission to mother was generally contingent on abstinence from drugs.

In Bath, the father had also been identified as a user of crack cocaine and possibly heroin (para. 42), but it was the mother's ‘plight’ that was ‘truly pitiful’ and, seemingly, particularly ill-befitting of a mother and woman. The judge found the father to be a ‘very self-centred, controlling and over assertive man’ but did not delve into the father's background circumstances or consider any explanation for his ascribed characteristics (para. 47). It was also determined that ‘the greatest damage to [the mother's] chances of caring for her children successfully has arisen through her long-standing addiction to drugs and drink’ (para. 16). There was no suggestion that the lack of support from any of the children's fathers may also have been integral to the decision to deny care. Indeed, the judge himself acknowledged that the mother ‘did not get any consistent help from any of the children's fathers’ (para. 15) and noted that the father in the case ‘dipped in and out of the mother's life when it suited him’ and that ‘when the mother was struggling with drug addiction and the care of four children there is no evidence to suggest that the father supported her’ (para. 20). The mother's physical appearance, but not the father's, was also deemed pertinent; she was described as being in her ‘late 30's [sic]’ and as ‘an attractive, polite and intelligent woman who readily acknowledged that she had gone off the rails’ (para. 13).

Research has indicated that, if a mother's needs are routinely relegated to below those of her child, her incentive to cooperate with services is lessened (Waldby, Reference Waldby1986, p. 83; Fraser and Valentine, Reference Fraser and Valentine2008). At the same time, evidence of resistance to interventions and treatment plans could result in refusing residence or contact to mothers, meaning they were caught in a double bind. In M v. Warwickshire County Council (M and Another Intervening),Footnote ³⁹ for example, the mother was considered to be ‘unable to properly look after herself’ while ‘abusing alcohol and crack cocaine’ (para. 10). Yet the judge also regretted that she had ‘failed to access help in overcoming those problems even for the sake of the children’ (para. 10, emphasis added), reinforcing the construction of ‘good’ motherhood as an exercise in self-sacrifice and characterising the mother as doubly deviant for failing to access help while being a parent. In Tameside Metropolitan Borough Council v. KH, AC, ISH (a Child by Her Children's Guardian, Gill Pearson),Footnote ⁴⁰ the mother had conceded that she lied to her GP and social worker about her drug use because they ‘would have talked her out of it’:

The decision to highlight this incident in the judgment evinces the ways in which autonomous decisions to use drugs attracted condemnation from health and social service providers, and the courts. In a study of methadone maintenance treatment (MMT), Fraser and Valentine (Reference Fraser and Valentine2008) found that MMT builds a gendered notion of passivity as part of an attempt to ‘structure’ the lives of men and women. For female clients in particular, if they challenged expectations, they were understood to be transgressing ‘traditional ideals of femininity … quiet, retiring and subject to, rather than sovereign of, expert discourse’ (Fraser and Valentine, Reference Fraser and Valentine2008, p. 153). In Tameside,Footnote ⁴¹ it was recommended by a doctor that, among other requirements, the mother needed to stop ‘self-medicating’ with drugs and alcohol, and undertake cognitive behavioural therapy (para. 9). There was particular concern about the mother's dishonesty in respect of her alcohol and drugs intake, and her failure to report a relapse to the local authority (paras 9, 35, 54). According to evidence from the doctor, the mother ‘makes bad choices and is anti-authority and likes doing her own thing’ (para. 55), suggesting that the ‘underlying issues may be her personal preferences’ (para. 56).

Similarly, in S (A Child),Footnote ⁴² the expert doctor found the mother to be ‘highly defensive in responding to psychological questionnaires’ and he regarded this as ‘likely to be part of her rather emotionally repressed state, being a legacy of her drug use’ (para. 93). He went on to argue that the ‘main psychological issues for (the mother) have been her drug use, her previous violent intimate relationship, her lifestyle and her emotional stabilities’ (para. 95). Drugs were again causally responsible for the mother's emotional deficits, meriting a privileged position in the list of problems that she had been experiencing. Drug use could thus be both evidence of a mother's psychological inadequacies and also comprise the cause of personality deficits such as ‘emotional repression’.

The representation of the relationship between drugs and domestic violence in a number of cases was troubling due to the implications for attributing responsibility. Research has found that men may use intoxication in order to excuse their own violent behaviour (Abrahamson, Reference Abrahamson2006) and that alcohol may be used to explain rape or mitigate responsibility (Bernhardsson and Bogren, Reference Bernhardsson and Bogren2012; Finch and Munro, Reference Finch and Munro2007). In the judgments, women who had experienced domestic violence were in some cases held responsible for entering into the relationships in the first place or failing to seek appropriate support. In Tameside,Footnote ⁴³ the judge stated that

The purported risks to children thus authorised gendered judgments about women's responsibility for relationship violence and abuse. In M v. Warwickshire County Council (M and Another Intervening),Footnote ⁴⁴ the mother was described as ‘immature’ (para. 10) and ‘prone to abusive relationships’. In some cases, the use of drugs was also judged to have ‘caused’ domestic violence incidents. In West Sussex County Council v. J & Anor, the judge, referring to incidents of domestic violence, said that the ‘very unstable situation was exacerbated by the mother and possibly the father taking drugs’ (para. 13). In J v. G,Footnote ⁴⁵ the judge in the lower court ‘found and it was not disputed before us that the central reason for the problems between the parties was that J habitually used alcohol and drugs to excess which resulted in volatile and unpredictable behaviour on his part’ (para. 5). He also argued that living with the father ‘inevitably brings with it a real and sustained fear of physical harm as a direct result of him losing self-control through drink and drugs’ (para. 6).

It was expected that partners and family members, but particularly women, acted as ‘gatekeepers’ in preventing their loved ones from taking, or wanting to take, substances, supporting the claim that woman's idealised role within the traditional family can centre on female (but not male) drug users’ ‘inability’ to keep their families together (Hannah-Moffat, Reference Hannah-Moffat, Hannah Moffat and O'Malley2007, p. 230). Expectations about the ‘natural’ role of mothers feeds into well-established scholarship on the social construction of motherhood and observations about the ways in which the law shapes normative ideals about women and mothers (a woman must be a mother, selflessly available to her children, and so on) (Smart, Reference Smart1991; Diduck, Reference Diduck1993). Child-protection law, in particular, can create an opposition between the rights of children and mothers, so that women may be held individually responsible for failing to protect their children from socio-economic risks such as poverty (Kline, Reference Kline1993).

In Re: G (Care Order),Footnote ⁴⁶ ‘the grandmother … colluded with the mother in the mother's drug taking and … she has continued to indulge her daughter's self abuse’ (para. 52). In Re P (A Child: Assessment of Kinship Carers),Footnote ⁴⁷ there was implicit criticism of a prospective kinship mother's failure to report her partner's cannabis use, who was also a potential carer. According to the judge, the mother ‘knew that he was being economical with the truth. She could have contradicted him. She didn't. When asked why, she said that “it was [the partner's] issue”. Her written evidence is completely silent about [the partner's] cannabis use’ (para. 46). In X County Council v. M1 & M2, F1 & F2, A, B (by her Children's Guardian),Footnote ⁴⁸ there was also an expectation that prescribed substances were monitored. Mr Justice Cobb expressed his disapproval of a mother's (M1) comments about her partner's (M2) prescription drug use. He said:

Although, in Local Authority, it was the father who had been identified as failing to support his wife by drinking in front of her, prioritising ‘his own wish for alcohol over support for his wife in her recovery’,Footnote ⁴⁹ it was largely women, whether mothers, aunts or grandmothers, who were expected to assume the gatekeeping role. The judge in Local Authority thus also considered whether the mother's potential failure to protect her children from the alcohol abuse of the father affected her ability to meet their needs under section 1(3)(f) of the Children Act (para. 57). He said:

Such observations placed women as the primary protectors and of the family, and principle guardians of children's welfare.

9 Abstinence and honesty: performing capable parenthood

Although drug use is not supposed to act as a bar to assignations of ‘good-enough’ parenting, in reality, addiction was mainly formulated as antithetical to capable parenting in the cases surveyed and abstinence was privileged as key to preventing harm to children. In Local Authority,Footnote ⁵⁰ for example, in which the mother was identified as having problems with cocaine and alcohol, there was a requirement for ‘proven abstinence and sobriety before she can be an effective parent’ (para. 267). However, given that ‘dependence’ on heroin substitutes, and the occasional use of cocaine or cannabis, was not deemed to pose a threat to retaining the care of children in most cases, the production of realities about parenting and drug use or addiction was inconsistent. Moreover, evidence of abstinence was, paradoxically, not necessarily concerned with being drug-free, but about demonstrating characteristics of responsibility and self-sacrifice that were considered necessary, as a collateral reality, for capable parenting. As such, although the drug-free/drug-addict dualism proved to be a powerful source of governance in the cases described, admitting that one had a drug ‘problem’ or had experienced a relapse was also instrumental. Such exigencies reflect the requirements of advanced liberal citizenship: one must be responsible, self-governing and autonomous, whilst acknowledging and correcting one's failures (Foucault, Reference Foucault1978, p. 58). Drug testing was used in order to determine a parent's honesty, particularly in cases where care arrangements were contingent on parental abstinence, although there has been controversy over the use of hair-strand testing for drugs and alcohol in family courtsFootnote ⁵¹ and judges have cautioned against ‘relying on the science alone without regard to the wider picture’.Footnote ⁵² In Canada, an independent review into hair testing in one laboratory found that ‘flawed’ methods ‘had serious implications for the fairness of child protection and criminal cases’ (Lang, Reference Lang2015, p. 4). In Local Authority,Footnote ⁵³ the judge in the lower court had been concerned about the parents’ ‘ability to abstain from drug use, and maintain abstinence – a concern compounded by … the mother's lies about her drug use/relapsing’ (para. 143). Similarly, a failure to acknowledge that one had a ‘problem’ was looked on unfavourably by the court and could be used as evidence of a parent's poor attitude. In Re A (Children),Footnote ⁵⁴ the judge stated that

The discourses of medicine and psychology have tended to frame drug use as an individualised problem that can only be treated through the intervention of expert doctors and therapists (Moore and Measham, Reference Moore, Measham and Mistral2013; Flacks, Reference Flacks2018). It is thus perhaps not surprising that treatment and psychological technologies such as cognitive behavioural therapy were privileged as the main ways in which parents could ‘recover’ and become good-enough parents. Recall also that, for H.H.J. Wildblood Q.C. in Bath, trying drugs indicated some vulnerability and impressionability. At the same time, drug-taking was considered to be a consequence of immaturity and irresponsibility, reflecting the ambivalent and paradoxical construction of drug-taking and addiction as behaviours that are associated with both victimhood and blame. In Aberdeen City Council v. R, Sheriff Court of Grampian, Highland and Islands at Aberdeen,Footnote ⁵⁵ it was concluded that ‘the respondent led an irresponsible life. She abused and became addicted to controlled drugs, including heroin’ (para. 52). In L (A Child),Footnote ⁵⁶ the lower-court judge said: ‘no assumptions can be made at present about whether F will succeed in remaining free from drugs and mature into a responsible person who can shoulder all the burdens of his complicated life and restrain himself from inappropriate behaviour’ (para. 16).

Drug-taking was thus a marker of immaturity, suggesting a failure of responsibility and self-control, and parents were praised for demonstrating a willingness to align themselves with the court's interest in producing willingly governed, docile subjectivities (Foucault, Reference Foucault and Harmondsworth1986). They were thus ‘brave’ for acknowledging they had a drug problem and were therefore incapable of parenting.Footnote ⁵⁷ This coupling of ‘addiction’ with irresponsibility identified parents as deficient in the rationality and self-control that were necessary for exercising moral agency and reproductive citizenship (Fraser et al., Reference Fraser, Moore and Keane2014, p. 875).