The case involving the Italian mother who whilst in the UK had a caeserean section without her consent, and awoke to find her baby had been removed.
The Press, understandably have taken a very hard line on this – the Independent isn’t one of the Camilla Cavendish / Christopher Brooker brigade, but even they tell the story with very emotive language – social workers ‘forcibly removing the baby from the womb’ – I’ve even seen the phrase ‘ripped from the womb’ employed by the mainstream press today. The Independent even headline their piece that social workers were condemned for this action (which makes you immediately think “by a judge”, but no, it is by human right campaigners)
First things first then – we don’t know the facts. There will be three judgments in this case, all of which we need to see and consider before we could claim to be informed on the issues. Because contrary to the impression one might form from the Press accounts, social workers don’t have powers to conduct surgery, nor to remove children without either consent or a court order.
The judgments would relate to the applications and would be these :-
1. The Court of Protection decision that the mother in question lacked capacity to make a decision about the way in which she was going to give birth, and giving a declaration that a C-section was in her best interests (note that the Court of Protection don’t have the power to make the surgeons carry out the operation, only to tell them that they CAN do it without mother’s consent)
2. The initial decision for removal, which is probably going to be an ex-parte Emergency Protection Order – the existing law on this is that removal of a child from a parent without the parent being present to oppose is a draconian order that requires the most compelling evidence, and the Court should be very reluctant to grant such an order
3. Given that those two matters happened in August 2012, we now have the final hearing in care proceedings in which, it seems, the Court made a Care Order with a plan of adoption, possibly with a Placement Order. As recent readers of this blog will know, the test for that has become very high (many would say rightly so) – that “nothing else will do”
There are three judgments then, two involving very very high and stringent tests and robust evidence – the Court of Protection would undoubtedly have needed to consider the operation very carefully before granting it.
So, firstly, we don’t know the circumstances – given the public debate I think that all 3 of these judgments should be published forthwith and that the Press should also be given access to the documents and evidence in the case (so long as anonymity is preserved). It is vital that one sees in this case whether :-
(a) The proper high legal tests were observed in this case
(b) The authorities involved made the applications that they were entitled to make in law in good faith, and that there was no other option realistically open to them [were they gung-ho, or just in a genuinely impossible position? We don’t yet know]
But over and above that
(c) Whether as a society, we are content for the State to have such powers at their disposal, particularly when they are used on a person who whatever the scenario was a vulnerable person enduring a difficult mental health problem.
I can see perfectly well why John Hemming MP has taken an interest in this case – it involves the Court of Protection, decisions being taken in the “best interests” of a person which seem on the face of it to be directly counter to what the person’s own view of what would be in their best interests would be had she been asked, the whole issue of a person being deprived of the opportunity to challenge and fight the most dramatic and draconian applications purely because she lacks capacity (her vulnerability effectively being counted against her twice)
I’m not going to defend or condemn the actions of the State in this one, because I don’t have the facts. [yet] It may well be that no matter how dreadful the risks and fears were in this case, no matter how strong the evidence, I would still feel uncomfortable that the State had such power to do such things. I’m not sure that they sit terribly comfortably with the duties that we have to people under article 8 – I can think of no greater interference with family life than this, and one has to be sure that the interference is both necessary and proportionate.
I do feel that the Press is a little unfair in not conveying that these actions were all a consequence of a Judge making decisions. Whether a Judge, any Judge, should have that power, whether the requirements and tests are high enough and whether the safeguards for a mother in this position are adequate is a perfectly valid debate, and the sooner the facts of the case are properly in the public domain the better.
*I will declare an interest now, I worked for a time at Essex about five years ago, and I think that they are good people; although in any case like this I would prefer to see the judicially established facts rather than the media spin on things
suesspiciousminds 
There’s now a useful statement on the Essex CC website which does make the context a little clearer.
Oh come on Julie, do you believe a word of it?
https://www.essex.gov.uk/News/Pages/Essex-County-Council-responses-to-interest-in-story-headlined-Essex-removes-baby-from-mother.aspx
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Well have to say even with what Essex is saying still have to agree that more info is needed in this case and I feel that all the info should have been acknowledge before hitting the press in the manner that it has …………
“It is vital that one sees in this case whether :-
(a) The proper high legal tests were observed in this case
(b) The authorities involved made the applications that they were entitled to make in law in good faith, and that there was no other option realistically open to them [were they gung-ho, or just in a genuinely impossible position? We don’t yet know]
But over and above that
(c) Whether as a society, we are content for the State to have such powers at their disposal, particularly when they are used on a person who whatever the scenario was a vulnerable person enduring a difficult mental health problem.”
Bang on point!!
I think it’s high time the mainstream media hits back and exposes overzealous social work – if this case is, in fact, another such instance – which, often together with judicial complicity – tends to taint proceedings by causing the appearance of collusion as well as the existence of corruption, and ultimately make doing a difficult job worse.
Good luck to Mr. Hemmings in Parliament. It’s time to reign in the bad apples; over-zealous social workers who abuse their powers along with dirty lawyers and bent judges who turn a blind eye.
In fairness, I preferred the Telegraph’s coverage over that of the tabloids when I reblogged this story last night.
| Child taken from womb by social services after mother’s panic attack! http://wp.me/p1xXtb-3h5
Pfft, I’ve raised four children into strong healthy adults while suffering out of control panic attacks, everyone’s still alive!
Total cr@p, the full details aren’t out there. Until the facts are available this is hyperbole gone mad, each faction grinding their axe. None more loudly than Booker and Hemming.
Social workers didn’t do this in isolation, they appealed to the courts to do this. If their arguments were faulty/false, it is the law that did this and the fault lies with the lawyers and judge, who let the arguments stand.
We should NOT be content that such powers exist. The very nature of the social services and court decision gives rise to many human rights issues.
And do you really think that this woman has any chance resolving and coping with any mental health issues when this barbaric act is allowed to be carried out.
As for spin many innocent parents are losing their children every day of the week in family courts.
So if as a solicitor you are prepared to accept the barbaric act by looking for a reason to accept the Essex social services and LAs decision to remove a baby before birth then think of this.
One day you may suffer post traumatic distress disorder or stress and be married or living with someone more powerful than you. Then you will wonder why as a woman you ever doubted the serious concerns over having a baby removed and God Forgive by C section and taken by a social worker.
Dont look for reasons for this woman suffering this huge inhuman act. Simply there is none that could possibly justify the action.
So can anyone believe that innocent parents are losing their children every day of the week.
YES, it is NOT spin, it is fact.
And is such a high ‘bar’ set that NO-ONE could possibly match up to parenting children.
Unfortunately the draconian action taken in this case will adversely affect the many families affected by bipolar disorder. Already there is ample evidence both from our own helpline and a number of published research papers, that it is now common for women to conceal mental illness during pregnancy and after birth for fear of being referred to social services. This has resulted in a number of suicides, as reported in the Confidential Enquiries into Maternal Deaths. And those same Enquries also show that social services involvement – or even fear of it – precipitates a number of suicides. Since suicide is one of the major causes of death associated with childbirth, this is a serious public health issue., and we have drawn the attention of Chief Medical Officers in the UK to this.
Moreover postnatal mental illness is common; the fact that women and their families feel unable to seek professional help since their babies are prize adoption targets should worry all of us.
Jean Robinson, President, Association for Improvements in the Maternity Services
The draconian action was however a clinical decision not one taken by a social worker as alleged by the Telegraph. I agree that this publicity is potentially damaging and we can only hope that forthcoming explanations will inform a constructive discussion about helping women. There are far too many children awaiting adoption already. I don’t think anyone wants to find more.
Nature did not intend babies to be ripped out of wombs on the say so of social workers supported by a court order given entirely on the basis of their reports of a woman who they have no previous knowledge of. I note she has two other children- there was nothing to suggest she has not been parenting them adequately- with support of her family or otherwise.
This uncalled for action only fuels the view of mental illness as something dangerous- when actually as Jean Robinson points out the facts are rather different.
The judiciary are not knowledgeable enough to challenge social workers views. The use of psychiatrists that support their views only adds to the biases as we all have heard from ‘expert evidence’ exposures.
I note that this article by a doctor raises isssues about how social workers make seriously bad judgements as they are so lacking in knowledge, experience or skills.
http://www.telegraph.co.uk/health/elderhealth/10487249/Dementia-sufferers-must-have-specialist-care.html (The diagnosis, treatment and management of dementia should be the work of specialist teams, not social workers or therapists).
The push by the social work bodies and organisations to make social work seen as ‘experts’ in dealing with people with all manner of medical conditions is seriously risking the health of society.
With regard to her other children, that press release from Essex CC makes it clear that in fact the Italian Social Services have acted with respect to them:
“Historically, the mother has two other children which she is unable to care for due to orders made by the Italian authorities.”
As the press release from Essex CC linked to above explains, in fact the Italian social services intervened with her other children.
“Historically, the mother has two other children which she is unable to care for due to orders made by the Italian authorities.”
The question that interests me most is that of the appropriate jurisdiction. If the mother is an Italian national habitually residing in Italy (as we are told), who just came to the UK for a short course, how is it possible that her child is under the jurisdiction of UK courts?
Granted, even if the mother were a British national habitually residing in the UK, the case still would have appeared as ugly, but I wish to sort out the purely legal matters first.
Or should UK be internationally advertised as a country where a female foreigner in an advanced state of pregnancy should simply never go?
Why not, this is not so Great Britain.
Where you can come here to start a new life and end up having your children taken from you, as the Musa’s found, oh nd dare to do something about it nd you’ll end up in prison, as the Musa’s found
Shame on this country
http://hospitalandprisonaction.org/adoption-gloria-and-chiwah-musa-may-lose-six-children-to-uk-social-services/
Interesting question. Italy is a Brussels II Revised country.
Literal interpretation would say that a foetus is not a child for BIIR so the convention isn’t engaged until the child is born. Even if one accepts (at a stretch) that jurisdiction when taking medical decisions about a medical procedure on an adult is a BIIR matter. And I don’t think there is any question about the jurisdiction of the UK courts generally over non-national adults who are voluntarily in the jurisdiction. The test in BIIR is habitual residence of the child. A newborn has no habitual residence—in fact as it was born and lived in the UK since birth the child it is arguably habitually in the UK—so if that isn’t the answer then it simply becomes a question of where the child is present.
Although EU legislation is interpreted in a more teleological way, I find it hard to accept that the purpose would be to require the courts of the country the mother was present in were required to return a (presumably) very heavily pregnant woman in urgent need of an operation anywhere having regard to the (presumed) health risks posed by any delay. There’s more scope for an argument about whether one can inpute habitual residence to a child based on the habitual residence of its mother. There may be an argument to say they both should have been returned to Italy for care proceedings. Unless anyone has any contrary CJEU BIIR authorities up their sleeve, my view would be that BIIR suggests the answer is the UK has jurisdiction.
Thank you, Jim Nately. Now I see that I haven’t made myself clear enough — my question is about the UK jurisdiction in the matters of the baby’s upbringing/adoption. How is it possible to take into “care” or FORCED ADOPT the child of a foreign national not habitually residing in the UK?
And I would dearly love to know what sort of arguments were used by the court in Rome (I don’t have time to look for the appropriate quote now, but I believe I’ve read that there was a hearing in the Italian court) to justify the child remaining in the care of British authorities. And it appears that Italian diplomats are silent – shouldn’t they step in?
I’m not entirely sure what you mean by this—there are two possible interpretations of the question.
1) How is it possible to take into care/adopt the child of a foreign national, when the foreign national is not habitually residing in the UK?
2) How is it possible to take into care/adopt the child of a foreign national, when the child is not habitually residing in the UK?
Question 1 is not the right question. BIIR doesn’t look at the habitual residence of the parent, it looks at the habitual residence of the child. As for question 2, I think the answer to that is one of two options:
a. The child is a newborn so is not habitually resident anywhere. In that circumstance BIIR directs that jurisdiction is determined by where the child is at the time.
b. For the time between the child’s birth and issuing of proceedings, the child is in the UK (residing there) and continues to live there while proceedings run. The child is therefore habitually resident in the UK
The more I think about it the more I think option b can’t be right. But there would be little/no argument to say the child is habitually resident in Italy either—it is hard (although interestingly not impossible) to be habitually resident in a country you have never been in.
As for the question of why Italian diplomats didn’t step in. I’d be surprised if they weren’t involved at all. There a central body (whose name I cannot for the life of me remember) that acts as a point of reference in exactly these situation. And it is not unheard of for foreign states to become intervenors.
The Egyptians Act (1554) basically made it illegal and a crime for the Romani people in England and Wales to live the nomadic life style of their choice and the punishment allowed by the act if they did not change their ways and integrate was the death penalty. Romani people were executed because of this act. The judges in these cases applied the LAW, but that did not negate the individual moral responsibilities of all those involved in the cases of those executed or give them free passage out of hell, simply pointing the finger at the judge is a cop out and denying the individual moral responsibilities of all those involved.
The state is not a physical entity or some imaginary force,it is made up of people from its society and it is those people that turn its cogs and make individual choices and have a responsibility to the rest of society and chose to put them selves in the position of wielding the power of the state against the people in the present day UK.
I have heard many parents say the social worker said its not our decision its the courts, and yet they have played their part in the state and helped turn the cogs in the direction of the judgements given by the judges in the court, its an attempt by the social workers to divert attention from their individual acts in the proceedings and their moral responsibility to society.
In the “best interests” is just a mantra to chant to hide behind.
Taking a child from a parent for them never to see that child again because those wielding the states power have turned the cogs in the direction of forced adoption, is a crime against humanity, perpetrated by all those involved. No matter what the circumstances are.
The path of all those involved in the child protection system are on is that of extreme institutionalism as seen in nazi germany, in the extreme the choices are not between good and bad for the perpetrators but between bad and bad or evil and evil. The concentration camp guards in nazi germany had the choice of murdering the targeted or betraying them selves, their friends and their family which would of more than likely lead to their deaths. The choice became between murder and murder, bad and bad or evil and evil not good and bad. The child protection system in the UK leaves the social worker, lawyers, judges and guardians in a similar position, the choice is not between good and bad but bad and bad or evil. For the social worker, lawyers, judges and guardians the choice is abuse the parent(s)/person perceived to be vulnerable or betray them selves and their friends and their family (by loss of employment,status,home etc) and possibly a child perceived to be at risk.
Stangl ( a commandant of a concentration camp) said,
“If I had sacrificed myself, if I had made public what I felt, and had died, it would have made no difference. Not an iota. It would all have gone on just the same, as if it and I had never happened.”
The people involved in the child protection system are not going to loose their lives by talking out and influencing change and stopping the crimes being committed or even by resigning, they should start now before the crimes being committed wielding the states power get worse.
Yes it’s me commenting, again …
How DARE they? Who the hell do they think they are? They’ve totally acted out of jurisdiction – the court was wrong, where was the Threshold criteria met?
This child has relatives
adoption should be the last resort
Section 31 CA 1989
(8)The local authority designated in a care order must be—
(a)the authority within whose area the child is ordinarily resident; or
(b)where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.
Court’s duty to consider alternative dispute resolution – Family Procedure Rules 2010
3.2. The court must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate. (i.e. place the child within the family)
Clearly this didn’t happen, AGAIN!! The mother and child had their Article 8 hra breached amongst many other laws, laws which seemingly don’t apply in the offices of the local authority and the secret courts.
Essex CC, over and over, leave me shaking my head
This time they leave me filled with utter disgust, they need to give their head’s a wobble and admit they got this wrong, it’s a national disgrace, yet not an unfamiliar theme.
After all, is this any different to a Social Worker standing at the bottom of the bed, while the mother is still in the delivery position with her arms outstretched, ready to remove the £’s, er … baby, from the mother’s womb? No – one was awake, the other wasn’t.
Clearly, this is yet another case to champion the cause of opening these kangaroo courts who just do whatever the hell they want
I hope she sues for them damaging her body, she’s been assaulted causing a disfigurement.
I hope she sues for
misfeasance
misconduct in public office
Breach of natural justice
Breach of Art 8
Breach of Art 6
Breach of every Art there is
Judicial review is/should be, the least of the SW’s, the LA’s and the judge’s worries. This has to stop!
I think it is fair to say we know so little about the facts of this case that there’s more to be gained by posing hypothetical questions about these powers.
It is easy to say “never should a pregnant woman be forced to undergo a C-section and have her child taken from her”. But—if we can put the various unknowns in this case to one side and focus on the principle—can that be absolutely right?
If, hypothetically, doctors took the view that it was medically necessary, in order to preserve the life of the child and the mother to compel a caesarian, is it right to compel it to save the life of the child and the mother? Can a person with full capacity refuse medical treatment such that it would result in the death of her and her child? What about a person who lacks the capacity to take those decisions? Is refusing medical treatment different from someone who actively takes steps to procure a miscarriage?
Does it follow from this that a woman who would refuse medically necessary treatment that would preserve the life of her unborn child should not have that child released into her care? Is there a risk of significant harm to said child just because of the precedent condition? Are these questions linked at all?
I’m not trying to answer these questions (merely…) posing them as questions that you must answer in order to issue a blanket condemnation of has happened here. We don’t know that these are the circumstances of course—but equally we don’t know that they are not.
To answer your question … social services must go snatch away every child of a jehovah’s Witness, for future risk of possibly not allowing a life saving blod transfusion
Oh wait, that would be wrong, because in this country we still have freedom of religious belief, it’s about all we do have freedom of, but it’s something
That analogy is wholly flawed.
Parents who are Jehovah’s Witnesses do not, as a matter of law, have the right to condemn their children to death by refusing a blood transfusion.
There are cases where Doctors have obtained declarations permitting transfusions. They tend to be High Court cases (as invariably there is no point in an appeal) but are worth a read. Re P [2003] EWHC 2327 (Fam) is (I think) on Bailii and should give you a flavour.
That is not the same as taking a child into care for risk that if some unspecified accident occurs in the future a parent who is a Jehovah’s witness may refuse a transfusion. Do you understand why your analogy (while emotive) doesn’t actually help answer these questions?
Adults, of course, may decline and die (and some, presumably, do).
granny s we dont have the freedom of religious beliefs you forget they got a court order to attend my wedding then when i changed the date and venue and time without telling them they wrote to me to inform me they had it recorded i was drunk at my wedding in the venue at the time it didnt take place o.O
oh and they stopped laneys christening …….. coz apparently the la didnt agree with her being christened in a proper ceremony !? xx
Toni macleod aka stella … I know sweet, but your case is such a stitch up, that if I didn’t know every ord of the whole shambles, even I would think it’s a badly written fiction novel x
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No I don’t
You missed my sarcasm completely (not published on Bailii)
As for your question on “Can a person with full capacity refuse medical treatment such that it would result in the death of her and her child? What about a person who lacks the capacity to take those decisions?”
Have a look at The disability Discrimination act, you will find every person has the right to decide their fertility, therefore the answer is, even a person without the mental capacity may refuse treatment that could result in the death of themselves or their child.
You also miss the point of this case entirely, this was NOT an emergency C Section to save anyone, it was a court ruling to get the baby out to hand to social services, who have no business adopting this child out, they did not do what the law requires of them, they did not take out viability assessments on family members, they are in the wrong no matter what spin you try to put on it.
I await Sir Mumby’s wrath on this
I spoke to the mother in question last week and after studying the papers she sent me which verified her story entirely I passed her number onto various journalists at her request.
She successfully passed a two week course for Ryanair cabin crew ,hardly possible for someone without capacity ! .She suffered a panic attack at the hotel worrying about her two daughters in Rome and was tricked into going to a hospital with police to see that her baby was ok but once there finding it to be a mental hospital she tried to leave but was forced to wait many hours before two doctors came to question her.Unwisely perhaps she refused to answer any questions without a solicitor so they sectioned her and kept her confined for two months without the medicine she needed for her bi polar condition and without performing their legal duty of informing her that she could appeal to an independent tribunal that would see her within three weeks ! She was isolated from family and friends but after two months was denied breakfast one morning and when she protested the injected her with sedation and when she woke up she was in a different hospital and to her horror her baby was gone for adoption they said ! She had been begging in vain for weeks to return to Italy for the baby to be born in her own country with her mother there but had been ignored.
She eventually appeared before a judge who described her as the most intelligent and articulate parent whose English was not their first language who had appeared before him! Nevertheless he decided that since there might be a future relapse the only remedy possible was adoption by strangers ! This in spite of the fact that a sister in law in USA,the fathe in ITaly,and the grandmother also in ITaly had all put themselves forward as alternative carers in order to avoid the baby vanishing for ever into adoption.
The local authority refuse to comment on individual cases (what else is there to comment on?) though they could do so perfectly well without revealing the names of anyone involved but refuse every time in such cases probably because their defence would be so weak that their safest reply is a protest that only one side of the story has been considered.Happily judge Munby has now summoned the social workers to explain why no alternative to adoption was found following his. Directive in a previous case that adoption without consent should only take place after a judge had explained why all other remedies were impossible or clearly not in the interests of the child.The international uproar over this case largely because of the forced caesarean and the refusal of uk social workers to allow the mother to return to Italy for Italian social workers to handle the case has ensured that this case will run and run !
forcedadoption, is it true (as I believe I’ve read somewhere) that the lady had also brought her case before an Italian court, and the court ruled in favor of the baby remaining in UK? What were the court’s arguments? Why aren’t Italian diplomats intervening?
leaving the child in ltfc until it is 18 years old, terrific.
However, this is not the first time visitors to this country have found themselves childless, thankfully the Latvian children are now safely returned to their home country after the intervention of the Latvian authories.
How long before the tourist industry starts to suffer because the UK becomes a country you don’t go to for a family holiday?
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