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
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?