England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SWANSEA DISTRICT REGISTRY

		Royal Courts of Justice Strand London WC2A 2LL
		16th September 2013

16^th September 2013

MRS JUSTICE PARKER:

1. The local authority in this case (which I shall not name, as I shall not name any other participant in this case) applies for an unusual but not unprecedented order in respect of the mother. Although in the title to these proceedings (brought under the inherent jurisdiction) she is recorded as acting by the Official Solicitor as her litigation friend, in fact the Official Solicitor does not represent her and she has not been served with this application.
2. Mother has long-standing mental health problems and an IQ of 64. I have read a report from her treating psychiatrist. Her diagnosis is of paranoia and psychosis. She also abuses drugs. She is described as challenging, and she can be volatile. She has had two previous children, both of whom were removed from her very early in their lives. The elder was removed from her care in 2007 aged three weeks, when mother physically injured that child by causing twisting injuries to his arms and bruising to his chest. Both those children now live with those children's father. She is now pregnant again, by a different father, with an estimated delivery date of 22^nd September 2013.
3. The local authority perceives there to be a grave danger to the unborn child immediately after birth, in the light of the mother's mental health problems and the increasingly worrying presentation which has manifested itself to her obstetrician, to social workers and to others. She is undoubtedly incapacitous in some respects, the extent to which is not clear because she has not been assessed. She is likely to have understanding in a number of respects, particularly those aspects of her own health care and her own wishes and feelings about her child which do not require sophisticated intellectual understanding.
4. Her consultant obstetrician found a very marked deterioration in her presentation. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy. She has had, until recently, a fairly trouble-free pregnancy and her two previous deliveries were normal. She has had some internal bleeding. It is not clear how accurate her description of the severity is of that. There is a fear there may be problems with the attachment of the baby's placenta. She became very agitated when he needed to examine her and refused to be examined. She is not currently medicated or accepting her medication, and this cannot take place until after the birth. She showed pressure of speech; she swore, was verbally aggressive and she had what the obstetrician called "an outburst". She was threatening. A number of minor issues were raised by her which it was impossible to "de-escalate". He is extremely worried that the mother will not be compliant with staff during the birth process as a result of her discussions with him. I have been referred to his notes recorded in an internal meeting.
5. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly. All the professionals who have been dealing with the mother are concerned that her mental health is currently deteriorating.
6. Her consultant psychiatrist reports that it has proved impossible to have a coherent rational conversation with her. She is "very thought disordered". The psychiatrist anticipates a struggle if the mother is asked to hand over the baby at birth. He believes that the risk to the baby when born would be high if the mother were to be allowed to hold the baby. He also infers that the mother's mental health was not as severely effected at the time when her older child was injured since she was not known to mental health services at that time.
7. All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
8. The view expressed by all the professionals is that if she is told about any plan to remove the baby at birth or after birth (under an emergency protection order or interim care order) this will exacerbate the problems with her mental health and "increase the already risky situation that is likely to occur following the birth". She is presently in a psychiatric unit and arrangements are being made for her to undergo her delivery at a local hospital.
9. The plan for the baby is that it will be removed at birth in the light of what happened to the two previous children. The second child was also removed at birth and she has said that she will not hand over the baby.
10. The local authority's application is, therefore, for a without notice order which is not to be served on the mother that:

(a) she lacks capacity to make decisions relating to the future care of her child when born;

(b) it is lawful as being in the best interests of her child when born for its Claimants, its servants or agents immediately to remove the child from the mother's care and to maintain that separation pending a Court considering the Claimant's application from an emergency protection order or interim care order;

(c) it is lawful for the minimum necessary force to be used, if required, in the course of effecting and maintaining such separation;

(d) it is lawful for the police to assist in the carrying out of the order by utilisation of their powers pursuant to section 46 of the Children Act 1989; and

(e) it is lawful for the Claimant to withhold from the mother its intention to remove her child from her immediately following birth and, in this regard, not to involve the mother in the planning process for her baby.

11. As I have said, this type of application is not wholly unprecedented. I have been referred to Re D (Unborn Baby) [2009] EWCA 446 Fam [2009] 2FLR 393, a powerful decision of the now President at the first instance.
12. It is of course trite law that no court has jurisdiction to make any order under the Children Act 1989 whilst the child is unborn and nor can the court exercise its inherent wardship jurisdiction in respect of an unborn child. But Munby J (as he then was) was asked in D to make an order prior to the birth to take effect immediately upon the delivery of the child. There is no doubt that there is no power for the court to make an emergency protection order or interim care order in respect of an unborn child, but the exercise of the inherent jurisdiction in Munby J's case was designed to effect (and did effect) that the court's order came into effect and could be implemented at birth.
13. Munby J held that parental involvement in planning for a child is "a given" in all cases, but that (paragraph 8):

"…having regard to the realities of the human condition, that there will be on occasions – exceptional occasions – circumstances which make it inappropriate for there to be such parental involvement. Thus, there have been a number of cases before the Strasbourg Court where the Court has recognised not merely that the emergency removal of children under an emergency protection order or its equivalent is in principle entirely compatible with the Convention but, moreover, that there may be such cases where a without notice application is justified…"

14. In paragraph 10, Munby J asked the question as to what circumstances might arise which:

"…justify the drastic step of removal without the prior involvement of the parent in the process?"

And he identified (in the domestic authorities) the propositions that these are:

"… 'the overriding necessity of the interests of the child.' "

Or that a judge should be:

"…satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children…"

15. In paragraph 11, the Judge said that there was both a substantive and a procedural component in Article 8:

"…the substantive component regulating the circumstances in which a public authority can interfere and the procedural component imposing upon the public authority the obligation of engaging and discussing adequately with the parents before it interferes."

The test, he said:

"Is the step which the local authority is proposing to take, that is, the step of not involving the parents in its planning and not communicating to the parents its plan for immediate removal at birth, something which is justified by 'the overriding necessity of the interests of the child' or something which is 'essential to secure [the child's] safety'?"

16. Mr Jones for the local authority also points out that in Re CA (A baby) [2012] EWCA 2190 (Fam) Hedley J stated that if a parent was asked to consent to Section 20 accommodation of the child, it is necessary that the parent have capacity so to do. It is unlikely that this mother has such capacity.
17. Returning to Re D, at paragraph 13 Munby J said:

"…there can be no dispute … that in an appropriate case the court can, and indeed should, in the public interest and for the proper protection of a public authority, grant that authority an anticipatory declaration that a proposed course of conduct is either lawful or, as the case may be, unlawful."

The Judge held therefore that he had jurisdiction to grant a declaration (if the facts justified it):

"…that the applicant local authority is acting lawfully and compatibly with the Convention in not engaging the parents in the planning process…"

18. At paragraph 16, the Judge said he had no hesitation in the highly unusual circumstances, in taking the very exceptional step of not informing the mother, and making an anticipatory declaration, which was:

"…entirely justified and indeed imperatively required in the interests, in the period immediately following birth, of the as yet unborn child."

19. In the final paragraph (paragraph 30) the Judge said that he was conscious of the fact that there must be a real question as to whether an unserved party could in any way be bound by the declaration granted, but he pointed out that:

"…the very nature of the risk which she presents, and against which the local authority appropriately wishes to protect her unborn child, means that she cannot be alerted to the application, for that would be to frustrate the very order which the local authority seeks."

20. I raised the question with Mr Jones during the course of his carefully presented argument as to whether or not it would be appropriate for me to indeed appoint the Official Solicitor (if he so agreed) to act on behalf of this mother, and for the Official Solicitor to be informed of the nature of the application (or indeed any order), in order that representations could be made to the court. However, I perceive that the Official Solicitor, or indeed any legal representative acting on behalf of a party, incapacitous or not, cannot be bound to withhold information which comes to their notice from their client. And it seems to me that this mother probably has the capacity to understand the nature of this application and that the local authority intends to remove the child from her. In my view, the only basis upon which a legal representative can agree not to disclose information to their client is if that client consents to that course of action, and in order to obtain such consent the Official Solicitor would have to alert the mother to the nature of these proceedings. Mr Jones tells me that the authority shares that concern.
21. I have come to the conclusion from the documents which I have read and the submissions that I have heard, that this is indeed a highly exceptional and unusual case and that the history of the mother's mental health problems, her mistreatment of her other children (and there are other assertions of ill-treatment as well as the injury to the baby), the mother's increasing volatility, irritability and inability to accept the concerns of others and indeed her deteriorating mental health, do give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
22. It seems to me that the only way in which that risk and danger can be guarded against is by way of an order that the baby be removed immediately upon delivery. I understand and acknowledge what a drastic step this is, how deeply distressing this will be to this mother (as it would indeed be to any mother newly delivered of a child), and I am in no doubt that she will understand what is happening to her in these circumstances. But I am persuaded, and indeed now convinced, that there is sadly no other way of safeguarding the interests of this child than by making an anticipatory declaration as I am asked, in order that intervention can take place at the earliest possible opportunity.
23. Weighing up the options (as I must do), removal is the one which safeguards the child's interests whereas non-removal does not.
24. This will not deprive the mother of an opportunity to be heard on an application for an emergency protection order or interim care order at the earliest possible date.
25. I recognise that the first moments after a child's birth are particularly precious and can never be recovered, but nonetheless the opportunity to have her case heard at the earliest possible moment will go some way to preserving the mother's opportunity to have a relationship with her child.
26. In Mr Jones' draft order he refers to an application for an emergency protection order or an interim care order. This local authority is in no doubt as to the basis of its potential application and the application must be prepared now and must be lodged at the first possible moment during court opening hours after the child is born. If I say 'immediately', that means that it does not go down by courier; it means that nobody is still checking for spelling mistakes, it means that it is all sorted out and it is all ready to go and it is with the court at the drop-box or in the court office. I direct that the local authority contacts its local Court where the application is to be issued to ask that special arrangements be made for receipt of this emergency application.