Motherhood, madness, and the role of the state
University of British Columbia
Master of Laws - LLM
This thesis examines the state processes that are involved in removing children from mothers with mental health histories. In particular, the thesis analyzes the ways in which the ideology of motherhood intersects with the expert discourses of psychology and psychiatry to affect child welfare decisions. The study reviews mental health and child welfare legislation in each province in Canada and 61 court decisions where the mother had a mental health history. In examining the statutory frameworks, the thesis suggests that the legislative provisions treat children and mentally disordered persons similarly because they include the following common factors: a positive duty on the state to intervene in defined circumstances, procedures for responding to a crisis, legitimation of state intrusion to the otherwise private, an explicit or implicit best interest test, and the importance of expert opinion. In order to analyze their influence on judicial decision-making, this thesis examines the underlying assumptions of psychiatry and the ideology of motherhood. Four important elements of psychiatric discourse are: a focus on the individual, reliance on assessment and taxonomy, predictability of human development, and expertise in analyzing hidden motivation. By providing the scientific underpinnings, psychiatry reinforces the ideology of motherhood and cultural conceptions of which women are fit mothers. The thesis outlines the following components of the ideology of motherhood which inform judicial decision-making in child welfare cases: motherhood as an essential part of being a woman, the context of a heterosexual nuclear family, the intrinsic rewards of mothering, and the extreme selflessness required of motherhood. In combination, the influence of psychiatry and the ideology of motherhood undermines the possibility that a woman can be coincidentally both a "good" mother and a "good" patient. In addition to describing the underlying assumptions of mainstream psychiatry, the thesis reviews radical psychiatry as an alternative approach which, if considered, could lead judges to be skeptical of psychiatric evidence in specific child welfare proceedings. The data indicates that mothers with mental health histories overwhelmingly tend to lose their children in court proceedings during which judges defer to the opinions of psychiatrists. The reasoning in the decisions reflect the courts acceptance of the unexamined assumptions of psychiatry and their relationship to the ideology of motherhood. Further, the cases show that the purportedly neutral standard of the "best interests" of the child" is a malleable concept that is heavily influenced by the opinions of psychiatrists. Mothers with mental health histories are not perceived as credible in determining the best interests of the child, especially where the mother's evidence is inconsistent with the expert's. This thesis suggests that the presumption of the primary caregiver, a standard recently offered by some feminists to be applied in private custody disputes may be equally problematic for mothers with mental health histories. The critical perspective of radical psychiatry has had no impact on judicial decisions in this area. Further, the cases indicate that even where the court decides custody in favour of the mother, the decisions are not confirmations of her fitness. Rather, the "victories" for mothers with mental health histories may occur either because the authorities flagrantly breached procedures or may include conditions which return the mother and the child to the ongoing supervision of mental health professionals.
Law, Peter A. Allard School of