In which I applaud Hayden J for sticking both his neck out, and his finger in the dyke.
Re DM 2014
Re DM was one of those cases where a Local Authority go to Court BEFORE a child is born, to say that they intend to issue care proceedings with a plan of separation at birth and that they want the Court’s permission not to tell the parent of this plan.
This peculiar application, well-described by Hayden J as “anticipated declaratory relief” emerged from the decision of our President in Re D (also Bury MBC and D) 2009 http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html
That case turned on utterly extraordinary facts.
The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.
In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.
The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.
The Local Authority in that case (Bury) were in a spot. They knew that they intended to issue care proceedings and seek removal of the child once born, and they also knew or considered that telling the mother of that in advance would jeopardise the life of the baby. They therefore took an unusual step of making an application in the High Court under the inherent jurisdiction for a declaration that NOT telling the mother of the plan would not breach their duties to her or her human rights.
The difficulty, of course, is that the mother is not told of the application and has no chance to put her own position before the Court AND of course, when the application for an EPO is made, no doubt that Court is told that in effect the High Court has already nodded approval of the plan.
In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950”. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.
When Bury/Re D was reported, most professionals thought that those circumstances would never arise again. But as I have blogged, these applications have become more common.
And I have been worried that the exceptional and dramatic circumstances of Re D have been translated into similar declarations in much less dramatic circumstances – and that they often involve cases where the mother either lacks capacity or has profound mental health problems (i.e where her vulnerabilities require even more protection from the power of the State)
I am pleased to see that Hayden J agrees with that, and says so.
This is the first reported Re D type application that has been refused, and hopefully that will staunch the flow of these.
My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW  EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG  EWCOP 30 and X County Council v M, F & C  EWHC 2262 (Fam).
In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.
Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.
On the particular case in question
I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.
Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.
Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.
Re. D has always sat on my shelf as one of those cases where the intentions were at the time right however the details given by Hayden QC who was Counsel for Bury left no opposition from the mother, in effect having an ex-parte hearing on such an important issue without the other side of the coin being known, suffice to say I was at the contact center on another matter when it all happened some of the reported facts were not accurately put to Munby J when the application was made, however I will say no more on that and we know the result of that case.
I am surprised to read Hayden J has dealt with another such instance but turned the other way, I would welcome such from him, as we know in Re. D [Bury] is was envisaged as a one and only time such an application would be made and even Munby questioned would another such application come before the courts again, I know there was another reported similar case this year, or late last year which followed suit from Re.D, the mother was not informed of the court proceedings, the order was granted.
What strikes me in these cases it that prior to any form of court proceedings or even contemplation of court proceedings the Local Authorities should be furnished with enough evidence and facts to ably proceed through the right channels, if however the L.A deem it necessary to simply apply to court ex-parte then surely they have failed in their role, it is such a draconian step to take, there must be multiple meetings and discussions about the family in question, who makes the final decision to take this line of action.
Never easy in the grand scheme of things of preserve and protect
Oh, that’s a really good observation Jerry. I hadn’t picked up that Hayden J had been counsel in Bury asking for the order. I think Re D was one of those cases where it was the right thing to do in that case, but it probably shouldn’t have established a precedent for doing it again.
i personally hold Hayden J in great standing in my ream of judges iv been before he has in my experience been nothing but honorable parent orientated and law abiding which is more than i can say for most amen that judge amen indeed !
just wish more were like him
Looks like Hayden J was NOT taken to what I consider the most egrerious misuse of the Bury precedent, the case of A Local Authority v C  EWHC 4036 (Fam) (16 September 2013) http://www.bailii.org/ew/cases/EWHC/Fam/2013/4036.html – maybe the case Jerry Lonsdale above is thinking of?
I argued precisely that the Bury precedent was being misused and extended to situations it was never intended to cover here – http://celticknotblog.wordpress.com/2014/07/17/abuse-by-the-state-the-inherent-jurisdiction-in-parker-js-hands/ – nice to be vindicated…
Yes, that’s I think the worst example of it – the facts in that case are really not that extreme and might be said to apply to a number of mothers. There are risks, yes, but they don’t appear insurmountable unmanageable risks as they might have been in Bury.