(No, I’ve not asked Christopher Booker to do a guest blog, but this is a case which is worthy of attention, given how much press coverage the Italian C-Section case received. I am quite surprised that this made it through the Lord Nueberger view of article 8 and what the word necessary means in that context)
A Local Authority v C 2013
This is unusual, because it is an application that the Local Authority made BEFORE the birth of the child. I have only ever seen one of these before, the one referred to in the judgment Re D 2009.
(a) she lacks capacity to make decisions relating to the future care of her child when born;
(b) it is lawful as being in the best interests of her child when born for its Claimants, its servants or agents immediately to remove the child from the mother’s care and to maintain that separation pending a Court considering the Claimant’s application from an emergency protection order or interim care order;
(c) it is lawful for the minimum necessary force to be used, if required, in the course of effecting and maintaining such separation;
(d) it is lawful for the police to assist in the carrying out of the order by utilisation of their powers pursuant to section 46 of the Children Act 1989; and
(e) it is lawful for the Claimant to withhold from the mother its intention to remove her child from her immediately following birth and, in this regard, not to involve the mother in the planning process for her baby.
(I note that it is a shame that the order accompanying the judgment is not published, since (b) is interesting. It seems as though that might be akin to an Emergency Protection Order made before the baby is born, to take effect at birth. Edit – actually what it does is tell the police (d) that they can lawfully remove under a PPO. That raises even more questions, since the existing law is that Police Protection ought to be behind making an EPO or ICO application in the pecking order – Liverpool v X, for example)
The mother in this case was said to have profound mental health problems and other issues
Mother has long-standing mental health problems and an IQ of 64. I have read a report from her treating psychiatrist. Her diagnosis is of paranoia and psychosis. She also abuses drugs. She is described as challenging, and she can be volatile. She has had two previous children, both of whom were removed from her very early in their lives. The elder was removed from her care in 2007 aged three weeks, when mother physically injured that child by causing twisting injuries to his arms and bruising to his chest. Both those children now live with those children’s father. She is now pregnant again, by a different father, with an estimated delivery date of 22nd September 2013.
What were the arguments for not telling her?
- The local authority perceives there to be a grave danger to the unborn child immediately after birth, in the light of the mother’s mental health problems and the increasingly worrying presentation which has manifested itself to her obstetrician, to social workers and to others. She is undoubtedly incapacitous in some respects, the extent to which is not clear because she has not been assessed. She is likely to have understanding in a number of respects, particularly those aspects of her own health care and her own wishes and feelings about her child which do not require sophisticated intellectual understanding.
- Her consultant obstetrician found a very marked deterioration in her presentation. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy. She has had, until recently, a fairly trouble-free pregnancy and her two previous deliveries were normal. She has had some internal bleeding. It is not clear how accurate her description of the severity is of that. There is a fear there may be problems with the attachment of the baby’s placenta. She became very agitated when he needed to examine her and refused to be examined. She is not currently medicated or accepting her medication, and this cannot take place until after the birth. She showed pressure of speech; she swore, was verbally aggressive and she had what the obstetrician called “an outburst”. She was threatening. A number of minor issues were raised by her which it was impossible to “de-escalate”. He is extremely worried that the mother will not be compliant with staff during the birth process as a result of her discussions with him. I have been referred to his notes recorded in an internal meeting.
- Her consultant psychiatrist reports that it has proved impossible to have a coherent rational conversation with her. She is “very thought disordered”. The psychiatrist anticipates a struggle if the mother is asked to hand over the baby at birth. He believes that the risk to the baby when born would be high if the mother were to be allowed to hold the baby. He also infers that the mother’s mental health was not as severely effected at the time when her older child was injured since she was not known to mental health services at that time.
- The view expressed by all the professionals is that if she is told about any plan to remove the baby at birth or after birth (under an emergency protection order or interim care order) this will exacerbate the problems with her mental health and “increase the already risky situation that is likely to occur following the birth”. She is presently in a psychiatric unit and arrangements are being made for her to undergo her delivery at a local hospital.
You should also note that the mother was not represented at THIS hearing, even through the Official Solicitor (the agency who act on behalf of parents who lack capacity to instruct a solicitor). This was discussed, here
I raised the question with Mr Jones during the course of his carefully presented argument as to whether or not it would be appropriate for me to indeed appoint the Official Solicitor (if he so agreed) to act on behalf of this mother, and for the Official Solicitor to be informed of the nature of the application (or indeed any order), in order that representations could be made to the court. However, I perceive that the Official Solicitor, or indeed any legal representative acting on behalf of a party, incapacitous or not, cannot be bound to withhold information which comes to their notice from their client. And it seems to me that this mother probably has the capacity to understand the nature of this application and that the local authority intends to remove the child from her. In my view, the only basis upon which a legal representative can agree not to disclose information to their client is if that client consents to that course of action, and in order to obtain such consent the Official Solicitor would have to alert the mother to the nature of these proceedings. Mr Jones tells me that the authority shares that concern.
So, the order was made, using the authority of Re D, and the principles set out within that judgment
- I have come to the conclusion from the documents which I have read and the submissions that I have heard, that this is indeed a highly exceptional and unusual case and that the history of the mother’s mental health problems, her mistreatment of her other children (and there are other assertions of ill-treatment as well as the injury to the baby), the mother’s increasing volatility, irritability and inability to accept the concerns of others and indeed her deteriorating mental health, do give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
- It seems to me that the only way in which that risk and danger can be guarded against is by way of an order that the baby be removed immediately upon delivery. I understand and acknowledge what a drastic step this is, how deeply distressing this will be to this mother (as it would indeed be to any mother newly delivered of a child), and I am in no doubt that she will understand what is happening to her in these circumstances. But I am persuaded, and indeed now convinced, that there is sadly no other way of safeguarding the interests of this child than by making an anticipatory declaration as I am asked, in order that intervention can take place at the earliest possible opportunity.
- I recognise that the first moments after a child’s birth are particularly precious and can never be recovered, but nonetheless the opportunity to have her case heard at the earliest possible moment will go some way to preserving the mother’s opportunity to have a relationship with her child.
It seems therefore, that what the Court did was use the inherent jurisdiction to authorise removal of the baby at birth PENDING a very fast application for an Emergency Protection Order. The Judge makes it plain that the EPO application must be ready to be heard very swiftly
In Mr Jones’ draft order he refers to an application for an emergency protection order or an interim care order. This local authority is in no doubt as to the basis of its potential application and the application must be prepared now and must be lodged at the first possible moment during court opening hours after the child is born. If I say ‘immediately’, that means that it does not go down by courier; it means that nobody is still checking for spelling mistakes, it means that it is all sorted out and it is all ready to go and it is with the court at the drop-box or in the court office. I direct that the local authority contacts its local Court where the application is to be issued to ask that special arrangements be made for receipt of this emergency application.
I have some problems with this judgment and decision (not as a matter of law, the Judge followed Re D and balanced things but as a matter of principle and human rights). The remedy here for the removal at birth is that the mother has the opportunity to challenge within a few hours that decision at the EPO hearing. But how realistic is that?
Firstly, she is going to be in a state of complete shock at the removal, which will be a total surprise to her. (I know that lawyers could look at the history and say “well, an EPO application was likely” but from mother’s perspective, if social workers have been working with her and never said that the baby would be removed, she might well think that she will keep the baby)
Secondly, she is also in the immediate aftermath of childbirth, a process which is fairly stressful, painful and somewhat discombobulating (that is a huge understatement) – not putting one in the best shape to get dressed and get on a bus to court
Thirdly, when she gets to Court, she is not entitled to instruct a solicitor to represent her, as she doesn’t have capacity
Fourthly, the Official Solicitor hasn’t been warned of the pending application so that they will be ready at court to represent her
So a vulnerable woman, with mental health problems, in the immediate aftermath of childbirth will be in Court, reeling from the shock of removal and representing herself at a contested removal hearing.
Forgive me if I don’t think that this is terribly fair.
In addition to that, the legal tests for an Emergency Protection Order are rightly very high, following Re X, and are particularly high when the Court is only hearing one side of the story (as here). Shouldn’t the Court, when making a pre-emptive EPO using the inherent jurisdiction have to meet an even higher burden on the evidence than Re X?
I don’t blame the LA here – the facts of the case make this a very tricky and difficult decision, and they did place it before a Court for consideration. Nor do I blame the Court, who applied the existing principles, had all of the evidence when I have only seen a flavour of it, and had a hard judgment call to make. But I do think, and I suspect many of my regular readers will think the same, that this mother has not been fairly treated. Is the fact that she would react very very badly to the news of the plan for removal really sufficient to take from her her article 6 right to a fair hearing about that removal?
Do we have a proper system in place for mothers who have profound mental health problems, not least because often their drugs to control their condition aren’t conducive to being taken in pregnancy? Shouldn’t we be doing more? What are the safeguards for people like this mother?
(I don’t think this will be opening floodgates – the 2009 decision was viewed by most lawyers who read it as being something that would only be used in the most dramatic and extreme circumstances. I’m not sure these are those, however. I do honestly think that this case probably justifies more public debate than the C-Section case – at least she had legal representation, even if one could argue that she didn’t get much of a say in it )