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Untimely ripped part two

Firstly thank you to all the contributors to the debate on the first post, I think this case undoubtedly stirs up not only emotions but some genuinely important issues. No doubt once we get the Court of Protection judgment (which is the really important one) more issues will be stirred up.

I have to point you all towards Pink Tapes very thoughtful and considered analysis of the case

http://pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/#more-4418

which makes the very important point that the Press are conflating two separate decisions and applications

1. The Health authority’s application for a determination about capacity and surgery to the Court of Protection, which would have been about health issues

2. The Local Authority’s application for removal of the child on an interim basis, which would have been about risk  (and appears from the reporting to have taken place in mother’s absence and whilst she was not conscious)

It is the conflation of those two separate decisions and applications into one that suggests that the C-section happened to make it easy for social workers to remove the child that raises the temperature so much.   There are still very interesting and important issues in the case, however, and still a legitimate public debate to be had about whether this is right or not.

It occurred to me that I could imagine all sorts of scenarios where this choice was a genuine life-or-death one for both limbs (it would be wrong for me to speculate about those, but it doesn’t involve much of a stretch to concieve of a situation where it appeared that the only way to save A baby’s life was to take this incredibly harsh action). Now, we don’t know whether that was the case here or not, and await the judgments to give us an informed view.

[So from here on out, I am not talking about THIS particular case, I am talking about a hypothetical case, where the Court is satisfied that there is a genuine life-or-death choice to be made, where the issue is either to save the child OR to intervene in the starkest and harshest way  –  the Court is of course bound by Art 2, so would have no choice BUT to act, if the choice were that stark]

Hypothetically, IF the evidence was that this action was the only thing that could have saved the child’s life and the risks there were ones that no Local Authority could sensibly ignore, one still has to consider whether the State (which in my view effectively ‘borrows’ its powers with the consensus of the people) ought to have those sorts of powers, even after a legal process with safeguards and the highest tests before such powers can be used.

I think that there is a very legitimate question, along the lines of Ben Franklin’s famous aphorism  “Those who would trade in their freedom for their protection deserve neither”

If we as a society, and as a free press take the view that even in a life or death situation, an outcome like this is abhorrent and wrong  (and I think I am probably leaning towards that myself, in terms of ‘are these powers that the State should have’ as opposed to ‘those powers existing, was it right to make use of them?’  but I reserve my final position) then in coming to that judgment, we have to accept the consequences of it, which will be that we must be willing to accept that it might be better for the baby faced with this hypothetical situation to die than to use very draconian powers to secure its safety.

That’s a big question put in those terms.  I have immediately thought of  three conflicting positions in relation to that :-

(a) in a life or death situation, pretty much anything goes to save the baby, although the burden to demonstrate that this really is life or death is high

(b) Even in a life or death situation, the State shouldn’t have such powers and it is wrong to exercise them

(c) I would be absolutely opposed to such powers being used in anything short of life or death, and I still feel pretty uncomfortable about the powers existing, because of the draconian nature of them, the fact that the decision is being made in haste and what appears ‘life and death’ might not be in the cold light of day

[I think that in the hypothetical situation, I am probably C, but I MIGHT be B]

I do feel uncomfortable that a removal hearing takes place whilst mother was unconscious, if the reporting is accurate, and I would want evidence of a very high level that there was really nothing that could be done to safeguard the child whilst a hearing took place with mother being present.

I have little doubt, that IF we had a hypothetical situation like this, and the risks were genuine life or death and this draconian action was the only way to save the baby, and the LA HAD NOT acted, there would be equal criticism and vitriol from the Press about bungling social workers who let a baby die even though they knew how big the risks were  – “what were they thinking?”.  Does anyone honestly think that we wouldn’t have been seeing “heads must roll” headlines and speeches in Parliament? 

So whilst this case is based on a particular set of circumstances which may never ever crop up again, it does raise an issue of wider importance – are we as a society willing to accept that if the system is rebalanced so that we have a higher tolerance of risk to allow more children to stay with their families, are we at the same time willing to accept the less palatable consequences of that?

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About suesspiciousminds

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

14 responses

  1. Whatever Mr Justice Munby may decide, enough facts have been exposed in this case to flag it up as draconian, hence it would be wise to remind ourselves of the perils of arbitrary state intervention as British family justice risks being brought into disrepute here, within and without our shores.

    Given that state intervention exists to alleviate not perpetuate the misery of suffering children, as a last not first resort, it is hard to see how an unborn foetus could possibly be documented to be at risk of significant harm from her own mother when she is already parenting two older siblings, and habitually resident abroad.

    Adequately justifying this on the basis of a panic attack she had whilst visiting this country in line with her work for a fortnight, raises a real bone of contention in the court of public opinion.

    Perhaps a more precise definition of risk of harm in the CA 1989 s31 threshold test is overdue, in line with bringing the pendulum back in favour of less interventionism as recent case law indicates and Parliament always intended.

    This may serve to filter out the wheat from the chaff, and distinguish genuine cases of warranted child protection concerns from more exaggerated cases where risk is being hyped-up and projected to avert setting in motion an often irreversible chain of events resulting in splitting families up who should be kept together simply with a little assistance.

    • Judge Newton’s judgment at the custody hearing are now available at http://www.bailii.org/ew/cases/Misc/2013/20.html and provide some background to this troubling case that wasn’t hitherto available.

      In particular, it is now clear that Christopher Booker was either misinformed or being disingenuous in the extreme when he dismissed the unfortunate mother’s long-standing problems with bipolar disorder (which have led to her losing custody of her other two children in Italy and several hospital admissions there, both voluntary and involuntary) as “a panic attack”.

    • Judge Newton’s judgment at the custody hearing is now available at http://www.bailii.org/ew/cases/Misc/2013/20.html and provides some useful background to this troubling case.

      In particular, it is now clear that Christopher Booker was either misinformed or being extremely disingenuous when he dismissed the unfortunate mother’s long-standing mental illness, which had already resulted in her losing custody of her two children in Italy, as a simple panic attack.

  2. Ashamed to be British

    b) This is abuse of powers, it’s that simple

    No, I don’t believe heads would roll if a mother chose to take a chance and the infant consequently died, it happens every day, mothers smoke, take drugs, drink, play extreme sports during pregnancy, all potentially harmful, all potentially life threatening. It’s a choice and not one that sees every child whipped off by social services

  3. I am a regular reader and enjoyer of this blog but I felt compelled to comment in this instance because I feel I must be misunderstanding what you are saying.

    It appears you are saying that in a hypothetical instance where the life of both mother and child are at risk due to complications during the pregnancy (or for some other reason) but the mother is incapable of consenting to the life saving surgery due to mental health issues the state should leave both parties to die? To intervine would be in your words abhorrent, regardless of outcome.

    To be weighed against each other are in one hand the life of both mother and child and the duty of care owed to an unborn child and on the other the autonomy of someone with severe mental health problems. I appreciate that this is a value judgement but I just cannot imagine how you can weigh the two against each other and come down on the side that you appear to. I know which view is abhorrent to me.

    • Hi Oliver – I framed the question in that way because there clearly is a situation in which action which appears to the outside world to be very very dramatic and harsh might be required because of a life or death situation. I don’t really feel able to comment much on the C-section decision, but IF the medical opinion was “if we don’t do a c-section, either mother or baby or both will die” it seems a no brainer to me that you have to do it. For the removal at birth, if it were really a life or death situation, then art 2 binds on both the LA (to seek protective action to prevent that) AND on the Court (to make an order to prevent death). The problem is making sure that the evidence to let the Court make that evaluation of whether it is genuinely life and death is properly gathered and fairly assessed. Hard to do that when mother is anaesthetised.

      It takes time to sift through a lot of the nonsense that has been in the Press, but it boils down to this, for me : – if the risk is so immediate that one has to seek an order from the Court sanctioning immediate removal in the absence of the mother, how is that risk manifesting whilst the mother is unconscious recovering from an operation? (That becomes even more of an issue for me, given that she was detained under the MHA, and not in a position to simply walk out with the baby).

      And as we can see, what appears to be a life-or-death no choice whatsoever situation from one side of the fence, appears (or can be made to appear) to be a hideous over-reaction and oppressive action by the State.

      I should have made plain though, that my qualms were about the removal of a child from a person adjudged as lacking capacity at a time when they were incapable of either expressing a view or harming the child, NOT the decision about a C-Section, I can envisage many sorts of situations where there is simply no choice about the surgical intervention.

      • Thank you very much for clarifying, I was sure I must be misunderstanding what you were saying. I can entirely understand your concerns about the removal of the child.

  4. Pingback: Untimely ripped part two | Children In Law | Sc...

  5. I have many questions about this case, but will limit myself to three:

    1. Firstly were NICE Guidelines on Ante and Post-natal Mental Health (CG45)
    http://www.nice.org.uk/nicemedia/live/11004/30433/30433.pdf
    and Bipolar Disorder (CG38) http://www.nice.org.uk/nicemedia/pdf/CG38niceguideline.pdf
    followed.? If not, why not?

    2. Was there a strong clinical case for a caesarean – which can have an adverse effect on the health of the child, the mother, and any future siblings – as opposed to a normal birth? We have seen a number of cases where social workers were trying to arrange a caesarean delivery when there was no clinical need, apparently to disable the mother and enable easier removal of the infant.

    3. Why was this mother not treated in a mother-and-baby-psychiatric unit, where an expert team could have cared for her before and after the birth, and her baby could safely have been kept with her. Such units have excellent outcomes. However, I remember a case where we were supporting a suicidal mother whose baby had clearly been booked for adoption. We found her a place in such a unit, but the SW fought right up to the steps of the court against her going. Fortunately the judge ordered her admission, and she became once again the good mother she had been to the two older siblings and their new brother.

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

    • Hello Jean, sadly the published judgment (which is the final Care Order and Placement Order decision) doesn’t answer your questions, which are also mine. We need to see Mostyn J’s decision on the Caesarean – there are many potential medical reasons for having a C-section, potentially to save the life of both mother and child, and we simply don’t know whether that was the case here. And I fully agree with you on question 3, even if that were only for a day or two to allow for a contested hearing to take place in the presence of mother and someone acting on her behalf – we need the judgment from the EPO/short notice ICO for that one. That seems to me the really important public interest issue here (the C-section makes for good headlines, but in the absence of knowing what the stated medical reason for it was, the headlines aren’t backed up by much in the way of fact)

  6. So right Ashamed to be British and all.
    The facts remain that this is NOT a military operation. Neither is it a case that should states that a mother dies to save her child for BOTH have a right to a human life, BOTH have a right to NOT suffer abuse.
    But the court has decided that its alright to abuse the mother to so called protect the child.
    BUT the court forgets the most important issues is that the court and social services are teaching the child’ in the longer term’ that NO-ONE helped to protect its mother, that both social services and the court were inhuman enough to sacrifice its mother for what was only a ‘potential’ risk to its life. And that is if it existed at all.
    And as well as that it will teach the child that if you become ill, the ss and the govenment and courts will make a choice that will cause you considerable pain and will know that all were really only interested in protecting themselves. If this was not the case they would have helped mother and child together.
    In other words you may ‘think’ you saved a life but really you destroyed both.

  7. And this mother was simply ‘ill’. It can happen to anyone but her illness should have been met with care and understanding.
    But then the SS have abused those with disability and ill health for many years.
    And while they have notices up to respect them ‘or else’ they should remember that we All DESERVE respect not just them.

  8. As for whether to accept a higher degree of ‘risk’ the children that were murdered had serious warning signs that any normal parent would not have ignored.
    As for the SCRs one child was NOT killed by its parent or parents, one had injuries so serious they should not have ignored and on top of that a social worker knowing the ‘warning’ signs would not have failed to see the empty bedroom with a child left on a urine soaked mattress on the floor.
    And the list goes on.
    So get some people in ss with some common sense and stop this seriously harmful removal of other children on the backs of dead children. It is no decent memorial to them.

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