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The Italian Caesarean section case – Reporting Restriction Order

 

For background on this case see the whole of the internet for the first week in December…

[The basic facts, established from the judgments rather than doughty investigative journalism… Italian mother in this country for a short period not intending to live here, detained under mental health act, court of protection gave a declaration that surgeons could perform a ceasarean section on her, she knew nothing about it, child removed from her care immediately afterwards, placement order made in February 2013.  Readers must supply their own outrage]

This particular aspect was the application by Essex County Council for a Reporting Restriction Order. That was heard by Mr Justice Charles, a High Court judge.  At the time there was speculation that the RRO (an order which prevents the Press from publishing certain bits of information) was aimed at stopping the publication of photographs of the mother/baby, these having been linked to by various websites and on Twitter.

 

As one can see from the judgment

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/transcript-judgment-re-p.pdf
 
and order
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/reporting-restriction-order-matter-of-child-a%20.pdf
 
What is actually prohibited is naming the child, or the current address or the names or address of the carers.  
 
As you can see from the judgment, the Press actually had no interest in doing so, so there wasn’t much argument about the tension between article 8 (protection of the child’s privacy) v article 10 (freedom of the press) which these things normally turn upon.  If the RRO had been intended to restrict the public debate, I have little doubt that it would have been refused, with article 10 triumphing.
 
Whilst the Judge acknowledged within his judgment that mother’s name is widely available (and hence why he did not prohibit the reporting of that name within the RRO), I am NOT going to have it on the site or the comments. If people want to find it, I’m sure that they can.
 
Given that at this stage, we simply don’t know whether there is an application or pending application for either adoption, leave to oppose adoption or revocation of the Placement Order, it seems to me that the s97 prohibitions could bite at any time, and that would involve me having to go back and remove any such references later on. So, please don’t put the mother’s name in any comments, there’s no need.
 
Be aware that the RRO, due to some cunning wording, is binding on anyone who is aware of it.

 

9. Subject to the following paragraph, this order binds all persons and all companies or unincorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.

(Note that you don’t have to be aware of the exact contents, or to have been served with it to be bound by it, you just have to know that a Reporting Restriction Order was made – the onus is on you, if you want to write about the case to find out from the RRO what is okay to say and what is not)

In practice, the public debate is not stifled at all – one doesn’t need to say what the child’s name is, or the address she is living at to discuss the wider implications.  Some of my readers should also note that the RRO is potentially binding on people outside of the UK (such as Monaco) but only if the RRO was actually served upon them.  [This is the “following paragraph” referred to in para 9 above]

 

10. In respect of persons outside England and Wales:

(i) Except as provided in sub-paragraph (ii) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:-

(a) the first and second respondents or their agents;

(b) any person who is subject to the jurisdiction of this court;

(c) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(d) any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order;

(e) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

 
 
There is an interesting aspect to the RRO, which is that mother was not present or represented. The Judge took into account that her obvious views were that publicity and exposure of the case was what she wanted, and also made it plain that it was open to both her, and the Italian government if they so wished to make an application to vary or set aside the RRO.
 

 

I should also indicate that I have been told that the Italian Government or State has instructed solicitors and it may be that it would wish to take advantage of that permission to apply to vary or discharge equally any media organisation or other person affected by the injunctive relief can take advantage of that, as of course can the mother and the father, they not having been served as yet with the process

 

[The interesting thing remaining in this case, is of course, that the judgment which authorised Essex to remove the baby from the mother, which was given either on the day of birth or the next day, has not been published.

What we know about this is that there was (a) certainly a suggestion from the hospital that there was an option that might have kept mother and baby together in a hospital ward and (b) Mostyn J had originally indicated that he would hear the case but then released it to a District Judge.  There may be something sinister and suspicious and dreadful about the delay in publishing this judgment, it might just be that the District Judge is on holiday – it can’t be published until he/she approves it.   It probably isn’t too much of a stretch that there is a District Judge presently wishing that they had just let Mostyn J deal with it, as people are going to dissect every single line of that judgment when it is published]

 
I’m afraid that I won’t take any bets on what day of the week this RRO will be side-stepped by use/misuse of Parliamentary privilege.
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About suesspiciousminds

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

16 responses

  1. Ashamed to be British

    Seems to me it’s a copy & paste of the Re J case

  2. It does seem odd to see such a succinct Judgment in a very high profile case!

    • Well, what is there to say? Essex wanted to restrict two things – one that was already in the public domain and the Judge said it was too late, and the other the Press didn’t want to report anyway. So there wasn’t really much to adjudicate on. You may well be the first person in the history of law to complain that a Charles J judgment was too short for your liking….

      • I was hoping for meat and two veg or a whole sunday roast given what has already been said on the 3 W’s I understood the basis of the application, I do expect waffle from within these judgments, think I will have to write to Charles J and ask if he is feeling okay

  3. Judgment duly noted. But identifying the child and potential adoptive family in this, or any case I know of, has never been an issue. During the six years I sat on the GMC’s Professional Conduct Committee, hearings were almost always held in public throughout. . Anonymous complainants were referred to as Mr. A or Ms B. Occasionally a witness would make a slip and refer to them by name. The Press, who were invariably present, never revealed these. It was the issues which were important both to them and the public. Often our decisions were criticised by the public, sometimes unjustly because they had not heard all the evidence or seen the witnesses. But since we did our job on behalf of the public, they had every right to criticise.
    Having, as an advocate, seen a number of expert medical opinions given to Family Courts, I have been shocked at their poor quality, and I know they would never survive scrutiny of their peers if given in open court, like those I saw in medical negligence cases. If the evidence is not available, how can we judge?
    Jean Robinson
    President
    Association for Improvements in the Maternity Services

  4. Pingback: The Italian Caesarean section case – Repo...

  5. The case was actually handled by HHJ Newton the senior Family Judge at Chelmsford and was published before the Mostyn J one.

    • Thank you John, a lot of people are thinking that. There are three important judgments in this case :-

      1. The approval of the C-section (Mostyn J, published)
      2. The making of an Interim Care Order which justified removal of the baby shortly after birth (which was decided by a District Judge and still isn’t published)
      3. The final hearing in the care proceedings (HH Judge Newton, published) which decided that a Care Order and Placement order were the right orders.

      For the purpose of the Telegraph story, it is actually the second one which is most important. What did the Court decide that the risks to the child were, so that it was not possible to manage those risks in any other way than removing the child, what was said on mum’s behalf, what evidence was heard, were the right tests applied and was the decision properly proportionate. It is not ideal that we still don’t have that judgment, which is key to understanding whether the child was properly removed or whether mother has been harshly treated by the State and Courts.

      • That was District Judge Parnell’s decision. Unfortunately, unlike Magistrate Family Judges, they are not required to give written reasons. A fact I don’t agree with!

      • They are still required to give a judgment, which would be on tape, and can then be transcribed. But yes, I suspect that the reason we don’t have that judgment in our hands is that it was somewhat slight – particularly if the Official Solicitor didn’t oppose the making of the order (we don’t know whether they did or not)

  6. So nothing known about the interim adoption order. Not another squalid rubber stamp job, covered by the usual secrecy surely?

  7. It was an interim care order application the adoption and placement order was done much later by HHJ Newton. Removing a child is a draconian step and only taken after much soul searching and in best interests of the child.

  8. hmm why do i smell HHJ Newton as the problem……

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