It’s clobbering time ! Or not, as it turns out – Italian C-section case, the President’s judgment

Thanks to Jerry for tweeting that this was up – I didn’t even know there was an application. Okay, if you have been on a desert island in December – the Sunday Telegraph ran a story about social workers arranging a c-section for an Italian mother who had had a panic attack so they could steal her baby. A few days later, the press reported that Munby LJ (now the President of the Family Division) had called the case in, and demanding that social workers answer for their dreadful actions.

Over the course of a few days, we got more of the official judgments published, and one could see that although there were problems here the luridness of the reporting was not perhaps bourne out by the actual facts. (There are legitimate public debates about whether the mother’s representation in these situations is forceful enough against the State’s wishes, whether there should be a higher test for judicial declarations on c-sections, whether the placement order judgment made before Re B, Re B-S et al would now survive if we re-ran the case now, whether the State ought to have a mechanism to get the country that the mother is from to seize the case, and a few other bits and pieces) – but the press driven debate of “Should social workers be able to impose a c-section to snatch a baby” is a non-starter. The answer is an emphatic, no, they shouldn’t. Which is why they don’t.

Anyway, the case found its way to the President, ostensibly as a return of the Reporting Restriction Order (see last blog), although it appears that part of the thinking was that the President was about to open up a can of whoop ass on social workers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html

On 3 December 2013 a national newspaper ran a front page story under the headline ‘EXLAIN WHY YOU SNATHCHED BABY AT BIRTH’. The strapline, ‘Judge’s order to social workers behind forced caesarean’, was elaborated in the accompanying article, which stated that I had “demanded to know why the girl should not be reunited with her mother”. That was simply not so. All I had done was as I have set out above. I had directed no hearing. How could I? And I had given no directions as to the evidence that might be required at some future hearing of an application that had not yet been made. How could I? All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the Court of Protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media.

What the President does say is that the case raises important principles which are worthy of discussion, and building on his judgment in Re J, considers that transparency and being able to see the judgments and scrutinise them is a vital part of that.

1. In the present case, as typically, a number of competing interests are engaged, protected by Articles 6, 8 and 10 of the Convention. Three competing interests, in particular, have to be considered here. I take them in no particular order.

1. The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.

1. The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions (see most recently Re J, para 36) about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 4):

“The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case.”

If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.

1. P also, it should go without saying, has an equally compelling claim to privacy and anonymity.

1. How then, in the final analysis, is the court to balance these competing demands?

The Judge defends, to an extent, some of the inaccurate and tendentious reporting

1. Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

1. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

1. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.

It is a reasonable point. Whilst the placement order hearing had little of public import until the case broke, my view is that every Court of Protection declaration judgment ought to be published in anonymised form. Looking at the law reports, there are such few c-section cases reported since the introduction of the Mental Capacity Act, I think all of them ought to be published as a matter of routine – Mostyn J’s judgment was important and should have been published and available even before this furore. If it had been, it is likely that when the story broke, factual inaccuracies could have been put right (or heaven forbid, the journalists involved might even have tried to find the judgments)

I also happen to believe that any family court application for a Reporting Restriction Order should be published in such anonymised form as is necessary to protect the individuals privacy. We can’t have family law becoming like super-injunctions, where we don’t get told that there is something we can’t know.  (The RROs in this case were put up very promptly, which does the Court service and the judges involved a lot of credit)

Munby does have a word of caution for the Press, however

think I should repeat what I said earlier this year when addressing the Annual Conference of the Society of Editors:

“dare I suggest that the media should remember the great C P Scott’s famous aphorism that “Comment is free, but facts are sacred.” I recently gave a judgment that received coverage in the media. A legal commentator* suggested that readers might wish to compare and contrast what I had actually said with how it was reported: “Compare. And contrast … And weep.””

*Waves at Pink Tape