England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Leicester Combined Court, Wellington Street, Leicester. LE1 6HG Handed down at Birmingham Civil Justice Centre
		30/07/2012

The Hon. Mr. Justice Hedley :

PART I – The Issues

1. This case concerns the future of a baby girl CA who was born on 1^st February 2012; the local authority contends that her future must be secured by adoption whereas the mother seeks her immediate return. Within that a further issue has been raised as a result of the removal of CA from the mother on 1^st February pursuant to the mother's agreement having been obtained under Section 20 of the Children Act 1989. That has given rise to a claim by the mother and child against the local authority under Section 7 of the Human Rights Act 1998 and to a detailed examination of the proper province of Section 20 agreements.
2. In fact the Court's decision on the welfare issues was briefly communicated orally to the parties during the hearing, and the mother and the local authority resolved the issues under the Human Rights Act. The only requirement to reserve judgment was the need to set out the Court's views about the ambit of Section 20 agreements and also for those to be seen by the President of the Family Division before judgment was handed down. It follows that the drawing and implementation of the Order of the Court has not needed to await this judgment.

PART II – The Facts

3. The facts in this case are not significantly in dispute between the mother and the local authority. Thus it is possible to set out the background comparatively briefly although it will be necessary to deal in more detail with the events of 1^st February 2012.
4. The mother was born on 19^th July 1985 and is thus nearly 27. Her family were known to social services and it is enough simply to say that she endured a disruptive childhood and adolescence which has left her not only vulnerable but devoid of parenting instinct or intuition. That is to say that whilst she clearly loves her children and is committed to the concept of caring for them, and whilst she can often manage well in the context of supervised contact, she has no instinctive or intuitive feel for parenting nor any capacity for consistency. If all that were not enough, she also has significant learning difficulties so that she struggles to learn what for most is intuitive. It is important to stress that she has never harmed a child, has always tried to work co-operatively with others and has been entirely straight with the court.
5. It is a case which provides a vivid reminder that the joys and benefits of adoption felt on one side are acquired at a bitter price paid by another. It is the more vivid where, as here, the one thing that everyone can agree on is that the mother fully feels the bitterness of that price and has never done or said anything deserving of it, however right such a decision may be.
6. She has three previous children: L (aged 3½), CH (aged 2½) and B (aged 18 months). All those children are the subject of placement orders and have been placed for adoption. L and CH have been placed together whilst CA has been placed with B's prospective adopters and the local authority's plan is that she should remain there permanently. If CA cannot return to her, then the mother accepts that that is the best plan for her.
7. The mother has had previous unhappy relationships with men though her present relationship (with a man P not the father of any of these children) promises better things. It is, however, far too early to reach any conclusion: he has family responsibilities of his own and an issue with substance abuse which is not yet resolved. She has been the subject of psychological assessments, parenting assessments and (with CA's father) a residential assessment at the Cassell Hospital with B. The reports of each have been uniformly negative.
8. However, although the reports have been negative, they have not been negative to the mother as a person. In my judgment the mood of the assessments and the professional evidence is well caught by Mr. Nigel Sharratt, an independent social worker, who, in his conclusion to his report in this case, writes as follows:

"I have found this a very difficult report to write because I do like C and believe that I have a good working relationship with her. P also has presented as being very amiable and co-operative but I have to put this aside and consider what is best for CA and I cannot recommend that she be placed in their care for all of the reasons outlined in this report. What concerns me greatly however is how will C ever be allowed to parent a child unless she receives the input that is so desperately required? Is this young woman effectively being written off as a parent for now and for evermore because if so she and P need to know. C has obviously given thought to having a child with P but would this mean that proceedings commence again? I understand a considerable amount of money has already been invested into C (and CA's father) and in times when budgets are very tight decisions are made on the projected outcomes. What I would like to see is some very practical input made into C with P, and utilise his strengths and experience to support her before the inevitable happens and she becomes pregnant again."

9. In the event the mother gave evidence which I much appreciated and my positive impression of her will, I hope, be apparent from the terms of this judgment. By the same token my views as to the inevitable outcome of these applications will also be apparent.
10. It is now necessary to look at the events of 1^st February. Since the local authority and the mother have resolved the claim under Section 7 of the Human Rights Act 1998, the parties took the view (which I accept) that no benefit would inure by a detailed investigation into the evidence of that day. However, the evidence did not speak with one voice even within the local authority. Accordingly what follows is a picture which, if not wholly accurate, is sufficient for the purposes of the case. It does not contain any finding on any disputed matter within the authority.
11. There had of course been much pre-planning as the mother has never sought to conceal any pregnancy. It had been decided by the local authority that the child would be removed before the mother was discharged from hospital. The mother knew of that plan and had at the least demonstrated submission but not consent to it. Accordingly, when she was admitted to hospital as an emergency, the local authority were duly notified.
12. That day this mother was confronted with three key decisions: first, whether she would consent to life sustaining surgery; secondly, whether she would accept pain relief which included morphine (to which she thought she was allergic); and thirdly, whether she would consent to the accommodation of her child under Section 20 of the 1989 Act. She consented to the first, and the child was duly delivered during it, but initially refused the second; later in the day, no doubt because of pain levels, she consented to morphine.
13. That then provides the factual matrix within which this woman's consent to accommodation was to be sought. It should be said that the field social worker assumed that the child could stay in hospital for a day or two with the mother as indicated in the pre-birth plan. She (who knew the mother well) obviously saw no harm in that and saw the obvious benefit to the mother. That view, however, does not appear to have been shared by the senior management. Their view (and it is a conventional view) was that the child should be accommodated as soon as the child was fit for discharge. As the child was born entirely healthy, she would have been fit for discharge later in the day, though of course the mother was not. Hence, no doubt, the difference of view.
14. Hospital staff were clearly very concerned, given the mother's condition, about the local authority's plan to secure Section 20 agreement and voiced these concerns to the social worker. It seems that she acknowledged those but believed herself instructed to try again later in the day. Initially the mother, who had had significant surgical intervention, was unable to see the social worker. When later she did, she refused consent. Later still, and after finally accepting morphine, she was approached again.
15. On this occasion she was calmer and more comfortable and it appears that both hospital staff and social worker took the view she could deal with the matter. There is no doubt that the social worker was encouraging her to agree; when the mother phoned P and a friend, they too encouraged her to agree – so as to appear co-operative – and she did so and the child was removed.
16. What part, if any, did lawyers play in all this? It is important to note that the solicitors both to the local authority and the mother were experienced and proficient in this area of law. It appears that the local authority had sought legal advice earlier in the day but not after the mother had first been seen. The mother's solicitor, who of course knew of the plans, had been told of the mother's admission to hospital. She had repeatedly tried to contact the mother but was unable to do. Entirely reasonably she concluded that the mother was not well enough to speak to her. The mother certainly knew (as did the local authority) how to contact her. She was not in fact contacted until after the actual accommodation.
17. That I trust is a reasonably fair and accurate picture of the events of that day so far as they are relevant and necessary to this case. For completeness I should add that the local authority has instituted an internal investigation into the events of 1^st February 2012 and this judgment should be available to those involved in that. That then is the context in which both the Human Rights claim arises as well as the debate about the proper ambit and use of Section 20 agreements.

PART III – The Care and Placement Applications

18. This case has had the great advantage of judicial continuity. His Honour Judge Bellamy, the Designated Family Judge for Coventry, has effectively dealt with all the children in this case over the last three years. It comes to me by virtue of his order made on 1^st March 2012; he decided that the events of 1^st February merited the attention of the High Court. He in fact contacted me knowing that I would be sitting in Leicester. We agreed that he would continue to manage the case but that I would take the PHR and the trial; and that is what has occurred.
19. I am satisfied, applying Section 1 of the Children Act 1989, that CA's future welfare can only be promoted by her being in permanent substitute care. The mother is not able to provide for her needs nor is able, in any timescale appropriate to CA, to learn to do so. It follows that the Court must make the Care Order sought by the local authority in the acknowledged absence of any other family member to care for her.
20. Turning then to Section 1 of the Adoption and Children Act 2002, I am satisfied that her future permanent care is best secured by adoption and that a placement order should be made. That, of course, cannot be done unless the mother consents (which she does not) or the court dispenses with her consent. Section 52 of the 2002 Act provides (so far as is relevant here) that such consent cannot be dispensed with "…unless the court is satisfied… that the welfare of the child requires the consent to be dispensed with." For all the reasons appearing herein I am so satisfied and accordingly dispense with the mother's consent. The Placement Order must accordingly be made.
21. That approach is supported throughout by the Guardian. It is also supported by the child's father who although a party did not attend in person though he was represented by counsel on the first morning. His views appear in a statement and were confirmed in his latest instructions to his lawyers.
22. I have dealt with all this in unusually short order. This is because no relevant fact is in dispute and it will be readily apparent even from the outline in this judgment that the case is overwhelming. Although no-one doubts the sincerity of the mother's desire to have the child or the reality of her anguish at the making of this decision, it was clear from her own evidence that she knew that, until she addressed the issues raised by the psychologist and the Cassell, this outcome was inevitable. As will appear from the next part of this judgment, she may now have the opportunity to do that.

PART IV – The Human Rights Claim

23. Substantial discussions took place on the first day of the hearing (and had of course been in train for some time) which resulted in the local authority conceding the mother's claim under Section 7 of the 1998 Act. The substance is recorded in the recitals to the order but in effect acknowledge two matters: first, that a Section 20 consent should not have been sought on 1^st February 2012; and secondly, that such a removal was not a proportionate response to the risks that then existed. In the event the local authority accepts breaches of the Article 8 rights of both mother and child. The Order with its recitals is annexed to and should be read in conjunction with this judgment
24. The mother, in discussion about damages, asked that they be applied to the costs of her receiving the therapeutic input that has long been advised. The parties have agreed the payment of damages and other provisions which all accept amount to 'just satisfaction' of both these claims. It is important to stress that nothing in the subsequent discussion of Section 20 agreements or indeed anything else in this judgment is intended to impugn (nor should it be so read) the propriety of that resolution of the Human Rights claim to which indeed the court (since a minor is a party) specifically gives its approval.

PART V – The Use of Section 20 Agreements

25. Section 20 appears in Part III of the Act; that Part is entitled 'Local Authority support for children and families.' With the exception of Section 25 that Part contains no compulsive powers. Those are found in Parts IV (Sections 31-42) and V (Sections 43-52). The emphasis in Part III is on partnership and it involves no compulsory curtailment of parental responsibility.
26. All parties accept the importance of this and acknowledge that any attempt to restrict the use of Section 20 runs the risk both of undermining the partnership element in Part III and of encroaching on a parent's right to exercise parental responsibility in any way they see fit to promote the welfare of their child. I recognise and accept that.
27. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.
28. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained. That is implicit in a due regard for the giver's rights under Articles 6 and 8 of the European Convention on Human Rights.
29. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.
30. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers of the authority honestly believed that there were such reasonable grounds. In those circumstances a removal could be lawfully effected in one of four ways under the 1989 Act: by agreement under Section 20, by emergency protection order under Section 44, by the police under Section 46 or under an interim care order pursuant to Section 38. This range of options was considered by the Court of Appeal in A - v - East Sussex C.C. and Another [2010] 2FLR 1596. That case was not concerned with a removal at birth but it does stress the need for minimum intervention and the need to work in partnership with parents.
31. There is reasonably clear authority in respect of the compulsive powers under the Act. It is clear that court orders are to be preferred to administrative action and so Section 44 is accorded primacy over Section 46 – see Langley -v- Liverpool C.C. and Another [2006] 1WLR 375 especially per Dyson LJ at paragraphs 35-40. The regime and criteria for the use of Section 44 is fully set out in 'X' Council -v- B [2005] 1FLR 341 and X (Emergency Protection Orders) [2006] 2FLR 701 both approved by the Court of Appeal in A (Supra). The Court of Appeal have repeatedly returned to the subject of removal under an interim care order; for example in Re G (Interim Care Order) [2011] 2FLR 955 the authorities are reviewed and the conclusion reached that the court must consider whether the child's safety requires removal and whether removal is proportionate in the light of the risk of leaving the child where she was.
32. On the facts of this case, it is most unlikely that any order would have been granted on 1^st February. In saying that, it is of course accepted that had either the hospital required the discharge of the child or had the mother tried to procure it, an order would no doubt have been made. As it was, the mother was unable to leave and the hospital were not requiring discharge and it is probable that they would not have done so at least until the mother was fit for discharge.
33. In those circumstances the child was in a place of safety in hospital. All parties accept that in consequence the police would have had no power to remove under Section 46 and no order would have been granted under Section 44. Moreover, given the pre-birth plan and the mother's co-operation in hospital, it is hard to see how immediate removal could have been justified let alone actually authorised under an interim care order.
34. Although many local authorities have policies and internal guidance in place in respect of post birth removals, the researches of very experienced leading counsel have not uncovered specific guidance in respect of the use of Section 20. There is none in publicly available guidance nor in any reported decision of the court. Since this removal, which would not have been sanctioned by a court, was in fact effected by consent, it is perhaps not surprising that the court is being asked to consider the proper ambit of Section 20 in this specific context.
35. It is necessary to state one obvious point which does not arise in this case but which, if not stated, will at least be thought by those inherently suspicious of local authority power: namely that it can never be permissible to seek agreement to do that which would not be authorised by order soley because it is known, believed or even suspected that no such authorisation would be given and in order to circumvent that position. That would breach all requirements of good faith and of fairness.
36. As I have already said, however, there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation. Three obvious examples occur: first, where the mother's intention always has been and remains to have the child placed for adoption; secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce); and thirdly, where a parent whether by reason of supervening physical health or personal circumstance positively seeks accommodation of the child by social services. There will of course be others and the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority's powers of response under Section 20(4) must be respected.
37. However, and whatever the context, Section 20 agreements are not valid unless the parent giving consent has capacity so to do. It is important to note that by Section 1(2) of the 2005 Act a person is to be presumed to have capacity unless it is established that he lacks it. Moreover, the effect of Section 1(4) is to prevent inferences of incapacity from the making of unwise decisions. Incapacity must be due on a "…impairment of, or disturbance in the functioning of the mind or brain" – Section 2(1). Capacity is issue and situation specific. It follows that not only may a person have capacity to make one decision but not another but also may have capacity at one time to make the very decision in respect of which he lacks capacity at another.
38. That can be seen in the context of this case. The fact that the mother could make decisions about surgery and pain relief does not indicate that she could make decisions about the removal of her child. Again the fact that before the birth or sometime after the birth she could make decisions about removal does not mean she could on the day of birth. This latter factor (the impact of the birth itself) is the basis on which Parliament enacted for example Section 52(3) of the 2002 Act in respect of adoption and Section 54(7) of the Human Fertilisation Act 2008 in respect of surrogacy.
39. Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the 2005 Act. Assistance is, however, to be found in Section 3 of the Act which provides by subsection (1) that a person is unable to make a decision if he is unable –

a) to understand the information relevant to the decision,

b) to retain that information,

c) to use or weigh that information as part of the process of making the decision, or

d) to communicate his decision…

4) The information relevant to a decision includes information about the reasonably foreseeable consequence of –

a) deciding one way or the other, or

b) failing to make the decision.

40. Applying that to the facts of the case, the social worker was the person finally to decide capacity and she had the views of the midwives. The key judgments to be made were probably the mother's ability to use or weigh information surrounding removal and whether she understood that, if she refused, the child would stay in hospital with her. The first of those illustrates why a decision to agree to life-sustaining surgery is wholly different to a decision to consent to removal of the child. It is also clear that her attention was not called to the second matter at all.
41. In the events that have happened it is not open to the court to make a finding as to whether or not the mother had capacity to enter into this Section 20 agreement. I am bound to say, however, that on the evidence I have set out, I would be surprised were she found to have been capacitous. Let me say at once that I entirely accept that the social worker believed she had capacity, it is just that I seriously doubt the correctness of that judgment.
42. Had she lacked capacity, that would have been the end of the matter: the agreement would have been invalid and the removal unlawful. The consideration of informed consent and fairness proceeds on the assumption that incapacity is not established.
43. Any consent must be properly informed. In my view there were two aspects here which may have resulted in the consent not being properly informed. The first is that the mother was never told that a continued refusal of consent would result in the child staying in hospital with her for another day or two. Secondly, the mother was told that this was only a temporary arrangement; that was true as far as it went, though everyone else involved knew that it was highly unlikely to be anything of the sort. In my view she should at least have been told that the local authority would oppose a return. It is not material that either of these matters would in fact have almost certainly fortified her refusal: they were essential for the consent to be fully informed.
44. I am not sure that the court can say much about fairness on the facts of this case in the light of the local authority's concessions. Clearly a social worker must have regard to the vulnerability of the parent, her previously expressed willingness or otherwise to consent, the magnitude of the decision and its consequences for the mother and the actual circumstances of the mother as and when consent is sought. In this case the failure to encourage the mother to speak to her solicitor may also have affected fairness. It is important to emphasise that whilst the mother should know the plan of the local authority, willingness to consent cannot be inferred from silence, submission or even acquiescence. It is a positive stance.
45. In the light of all this can the court offer any guidance to social workers in respect of obtaining consent under Section 20 from a parent to the removal of a child immediately or soon after birth? The court can but must be astute to avoid excessive prescription as no such guidance can prevail against human capacity to produce wholly unforeseen situations.
46. The following can perhaps be offered as the more important aspects –

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother's capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?

b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

c) Is the parent in possession of all the facts and issues material to the giving of consent?

vi) If not satisfied that the answers to a) – c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?

b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

c) Is it necessary for the safety of the child for her to be removed at this time?

d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

47. None of this is intended to cast doubt on or discourage the use of Section 20 agreements from capacitous parents in the sort of circumstances outlined in paragraph 36 above. Those cases will rarely result in care proceedings. It is where care proceedings will be necessary that the matters set out above will have particular relevance.

PART IV – Conclusions

48. In the result the court has made the care and placement orders sought by the local authority and has accepted and approved the resolution of the proceedings under Section 7 of the 1998 Act. It has also ventured some observations and guidance as to the use of Section 20 agreements to effect post-birth separation of mother and child.
49. This judgment has been seen in draft by the President who has specifically approved the contents of paragraph 46 above. I propose to deliver this judgment in open court and have anonymised it accordingly. However, nothing must be reported which might reasonably lead to the identification of any child or their parents. There will, of course, be no need for the parties to attend on the handing down of this judgment.
50. Finally I wish to record two matters: first is the court's recognition of the dignified way in which the mother has conducted herself throughout what, for her, must have been intensely painful proceedings, small comfort for her though that will be; and secondly, the court's gratitude for the extensive assistance received from counsel in this case. This judgment is an inadequate reflection of their research and learning though it is to be hoped that it might be of some service in what all recognise as this very difficult and highly emotive area of family law and practice.