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