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Secret decision to remove

(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

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4036.html

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.

    1. The local authority’s application is, therefore, for a without notice order which is not to be served on the mother that:

(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?

    1. 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.
    1. 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.
    1. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly. All the professionals who have been dealing with the mother are concerned that her mental health is currently deteriorating.
    1. 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.
    1. All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
  1. 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

    1. 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.
    1. 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.
    1. Weighing up the options (as I must do), removal is the one which safeguards the child’s interests whereas non-removal does not.
    1. This will not deprive the mother of an opportunity to be heard on an application for an emergency protection order or interim care order at the earliest possible date.
  1. 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 )

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

27 responses

  1. And what about Daddy,or doen’t he count??????

  2. I am surprised they don’t enforce a Ceasarean while they are about it! All the evidence is hearsay so far ,with no witnesses,and no evidence allowed by the mother ,the father, or any relatives.No opportunity to cross examine anybody ,no live testimony, and probable forced adoption in view.This seems tailormade for Mrs Justice Parker !!

  3. 1) One is wondering why the father is not even mentioned (here I agree with the above commentator). It can be that he is not interested / not to be bothered, but should not the judge at least mention this?

    2) What do the woman’s relatives and close friends think of her state, the reasons of her hostility towards the professionals, etc.? Why only the latter are consulted (or at least there is no indication that the woman’s family / friends have been)?

  4. Pingback: Secret decision to remove | Children In Law | S...

  5. Ashamed to be British

    The Italian Job is the most complex case, with the weighing up of the arguments set above giving me real food for thought.

    The Local Authority probably got it right this time in regards to removal to safeguard the baby in the interim.

    Did they get it right in regards to the way they set about it? Probably not, as you have set out, the whole thing was a breach of her Art 6, it also breaks the natural balance of justice, breaks the Government guidelines regarding child protection as follows:

    Child Protection Plans must, by law consider the following:
    the person or body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or a decision or action that has been taken is ‘beyond the powers’ of the person or body responsible for it.
    Decision-makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be “illegal”. Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond its powers.
    •take into account relevant information (and to assign the appropriate amount of weight to such information), and to ignore irrelevant information;
    •ask the right questions and to undertake sufficient enquiry, for example by addressing the right issue, and taking reasonable steps to obtain the information on which a proper decision can be based
    It must not breach the rules of natural justice. One of the key issues here is the rule against bias, which requires the public body to be impartial and to be seen to be so.
    There must also be a “fair hearing” before a decision is reached, although this does not always literally mean an oral hearing. Basically, a person is entitled to know the case against them, and must have the opportunity to put their case properly.
    Examples of unfairness could include the following:
    •Failing to tell the individual what the case was against them, or taking into account evidence or factors which s/he was not aware of
    •Failing to allow the individual to put their case forward
    •Failing to give the individual the facilities for putting their case forward properly
    •Refusing to hear evidence which might have led to a different decision
    •Denying access to relevant documents
    •Holding a hearing in the absence of the individual when they had a good reason for not being able to attend
    •Failing to notify the individual of the time and place of the hearing that would lead to the decision being taken

    Abu Qatada was bailed to live with his children, he is a violent terrorist who condones & teaches the right of the killing of innocent people, he is a risk, his wife is also a risk, neither of them can recognise the dangers of teaching children to grow into adults of the same mindset.
    Who is deciding what risk is more or less than another?

    Removing the child without telling the mother is a clear breach of her and her child’s rights, not allowing the Italian Authorities to tak on the job that is theirs (jursidiction wise) is another breach
    This was yet again a crystal ball prediction of what the mother ‘might’ do, she may well have been absolutely fine, at what point did this country’s justice system break down to the point of judgements being handed down while ignoring the LAW and the FACTS, but rather relying on maybes and what if’s??

  6. I agree it is unfair. There is a systemic problem in the family courts, in that they really don’t seem to respect ‘due process’. I have written in spiked and in ‘Counsel’ on how the family courts deploy a therapeutic concept of justice, which favours outcomes over processes. I have never known an ‘ex parte’ application be refused, no matter how questionable the legal basis. The jurisdiction is unashamedly precautionary/ risk-averse. I confess I am guilty of this in a professional context (i.e. acting for risk-averse public authority applicant – though not in the context of childbirth) myself – not that it gives me any pleasure to admit it. There is also an underlying problem, in that the UK has a dearth of specialist prenatal health services. The RCM tell me there is one in Wales – about to close – and none in Northern Ireland. I am interested to see that this is a Welsh case, therefore. Again, there is no mention of any midwifery perspective. It is the role of midwives to be ‘with woman’ and to act as an advocate for pregnant women. My impression is that, too often, detained pregnant women with mental health problems fall between two stools – busy, over-stretched labour wards need them like a hole in the head, both from a practical and a liability point of view (NHS pays £700 per birth simply in PI insurance), and psychiatry doesn’t like having to deal with pregnant women and can’t offer ante-natal care. Finally, I agree that the potentially adverse emotional and mental health impact on the woman of this back-stairs manoeuvring cannot be under-estimated. How can she trust carers again? Grim….

  7. P.S. Sorry – my reference to ‘pre-natal health services’ should have read ‘pre-natal mental health services’.

  8. The facts of the case are not going to be tested and that is wrong. It is another shockingly cruel decision that takes advantage of a mother with fragile mental health.

  9. Andrew,

    Is there a direct way of contacting you? I just want to thank you for a particular post of yours which has changed the course of my case for the better

  10. GRRRR and more GRRRRR!!

    I have referenced the Re. D case over the past few years after the mother concerned in that was one of my cases, historically, and even now, although Re.D was 4 years ago, that particular case still leaves an unpalatable taste in the mouth,

    http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html

    More so, and further to the principles set down by Munby J is the fact that Local Authorities can do this without even making any notification towards the PARENT’s yes both parents,

    Shockingly it does take two to make a baby but from reading these types of Judgments one does wonder if the courts would take the same approach if the Fathers were involved,

    I cannot pass comment entirely in the Re A due to not knowing the overall circumstances, the case however, if a Judge uses a case like Re.D then one would have hoped that the Judge would have found that Re.D was extraordinary in the simplest of terms.

    Why I am so galled at the actions in Re.D is not the facts yet to be determined in the case, it was the instances that Bury took in preventing the Father from being an Intervener, although the mother was in Jail at the time of Re.D, and one would argue that the location of the mother was one that a child should not be raised in but I would argue would have been one of the safest and best places to monitor mother and baby,

    I am so frustrated in the way in which Local Authorities deem themselves to be Judge Jury and executioner, despite the profound concerns, why do they seek to take these actions,

    I have noticed the Mirror have published this Re.A case today, its harder to distinguish the wheat from the chaff,

    http://www.dailymail.co.uk/news/article-2527669/Newborn-child-taken-mother-hold-ruling-deeply-distressing-secret-court-case.html

    One would argue that if IQ is used to determine the capacity for a parent to raise their child, I am not one to brag but I do have a very high IQ, some days though I can barely tell right from left, often I have found the milk in weird places not knowing how it got there, these things happen to all of us, even the smartest make some of the silliest mistakes,, if I am under the weather or just too tired our minds can play some of the weirdest tricks on us, if I was to take an IQ test in those conditions then I would have a very low result, likewise in the Re. A case, she was under medication and influenced by narcotics.

    The ECHR case RP V UK last year looked at a mirrored case like that in Re.A and also when the case first came to light the Daily Mail’s ran its front Page was written as;

    “‘They stole my little girl,’ says mother judged too stupid to care for her baby”
    http://www.dailymail.co.uk/news/article-1189836/They-stole-little-girl-says-mother-judged-stupid-care-baby.html

    That was back in 2009, the same year that Re.D happened and was in discussion.

    One would argue that like in Re.RP, Re.D and now Re.A that these cases are like hen’s teeth, sadly it is not, we only hear these cases once they are published, or once there is a Judgment in which the Judge changes the goal posts,

    If any parent has a low IQ does that deem anyone incapable of being a parent, in Re.A there were other factors, however those factors are taken as fact and without a mother or the parents challenging the “Facts” how on Earth could a judge continue with a case, and likewise in Re.D the facts in the End were addressed and were not as extreme as first reported.

    What this looks like now is a Local Authority could tell a judge black is white and with no other parties present to show the Judge black is black then where will this actually end,

    how many cases like this continue to happen on what seems an Ex-Parte basis, there would be loads, I am sure.

    One final point here, in Re.A the Mother was not present in the court room, the mother was not consulted how can we as a society not be concerned about this, like I have mentioned this has been a recurring factor since 2009, it could be even earlier however I am not aware of any cases like this since Re.D and even that was deemed a one off case.

    • Ashamedtobebritish

      Off on a bit of a tangent I’m afraid … But you know full well, the local authority have usually deployed the divide & conquer technique before it gets to court, which is why entire families abandon one parent before it’s got to court.
      There’s nothing more powerful than a child to force parents and other relatives to conform, especially when it comes to admitting to false claims

  11. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy.
    ———————————
    A mother whose mental health had depleted. So what brought this about.
    Possibly a sense that the authority were becoming in tune with possible removal of her child….
    Having lost 2 children to an ex, a general depression that nothing would go right this time….
    Did anyone ever talk to this woman whom she believed she could trust?
    —————————————————————————————–
    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.
    —————————————
    What was said to her or indicated to her to react this way. Or indeed it is a statement made to undermine her capabilites. As I have seen many such statements against a parent when the parent has been no way as described, but only a little upset at the circumstances and conversation.
    Where is the evidence, video or recording that substantiated the statement made about her.

  12. Overall, I cant see anyone with whom this woman could trust. Nor can I see from this what support this woman had ever been given to 1/ Support her in line with her reduced IQ to parenting any children.
    2/ Anyone supporting her as she was and is a clear target for people to take advantage of her and then cope alone with the emotional aftermath.
    3/ Her extreme behaviour (if existing) could be a reaction to the lack of understanding or support or even undetected abuse to her.
    4/ A key to the answer could be the entry, “A woman of usual placid demeanor”.
    5/ A injury to the previous baby could have been caused by the another person (what exactly was the investigation into this) Or even that her IQ prevented her from understanding the delicate way in which to care for a new born baby. Many people of low IQ do not have this understanding and often will be too forceful even in play. Hence if this was the possible case why was she not supported in caring for her previous baby.

  13. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly

    Very concerning, as what were the professionals trying to say to her and what exactly made her feel so emotional.

  14. Another concern is her leaning towards drugs, which does not state whether legal or illegal drugs.
    If illegal drugs, a person with low IQ would not know how and where to find them. They would have to be targeted and groomed for ‘custom’ by the bottom of the line addict type dealer.
    So where and how did she become vulnable to these people?
    Where were social services then in protecting this vulnable lady?
    And where was the support in giving this lady the best chance of a normal life?

  15. Thirdly, when she gets to Court, she is not entitled to instruct a solicitor to represent her, as she doesn’t have capacity

    So where was the social worker who should have arranged an advocaat/ mental health lawyer/ to represent her.

  16. Is this another case of social services NOT doing what they should and could have done. BECAUSE it would not have given the result in court they really wanted.
    Another baby taken.

  17. In the growing number of cases now coming to light of forced caesareans and immediate removal of babies when pregnant women have been diagnosed as mentally ill, there is mention only of obstetric and psychiatric opinions, and not a word about midwifery care. There are now studies showing that continuous supportive care by one midwife during pregnancy and birth improves outcomes. Why are these women not provided with this kind of care? Research has also shown that as pregnancy advances, women become more protective of the foetus and may be increasingly fearful of threatening strangers – especially males. Authoritarian and secretive actions are likely to exacerbate mental illness. We have also heard many examples on our help line of accurate intuition of danger, which may be enabled by higher oxytocin levels.
    Increasingly child safeguarding is not about helping children, but about keeping professionals within their own comfort level; as they become anxious their first action is to exert control and disempower, rather than ask what worried parents would find most helpful.

    Jean Robinson, President, Association for Improvements in the Maternity Services

    • Ashamed to be British

      One could sum this up in simple terms

      If you try to take a cub from a lioness, what do you sippose she will do?

  18. What brings me up very short in relation to this judgment is the fact that there was no legal representation other than on behalf of the local authority. Would it not have been possible at least to appoint an amicus curiae to ensure that the opposing arguments were fully ventilated?

    • Thank you all for your comments. Unusually, we are all pretty much of the same view on this one. I don’t know what, if anything, will happen as a result of this case, but it does seem to me that Re D probably went too far, and that if a Court is going to entertain this sort of application there must be some proper article 6 protection. I think the suggestion of an amicus is a good one – a proiper amicus here would have at least been highlighting to the Judge all of the risks of ex-parte hearings and one-sided evidence, and the very high tests both for separation, and for separation on an ex parte basis.

      Forced Adoption, I haven’t been before Parker J much as a judge, but I can tell you that when she was at the bar she was the most tenacious, passionate and formidable parent advocate I ever saw. It was like standing in front of a tornado.

      • Unfortunately tornados can make good barristers but very bad judges; I suggest that the mothers just do not know what hits them when the ‘tornado” whisks away their children!Forced adoption based on pure hearsay with not a scintilla of live evidence and the mother not present………..That’s Parker for you……..

  19. A baby is to be taken at birth from a mother but this vital news is to be kept from her,she is allowed no say in court,no representation either,and is condemned by the judge as a dangerous and unstable woman purely on the basis of hearsay and no live witnesses;The judge’s explanation of her decision seems to denote the smug satisfaction of a “job well done”.
    Who was this judge? The honorable Mrs justice Parker herself ! Now why am I not surprised??

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