England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2014

Mr Justice Keehan:

Introduction

1. The matter concerns a very young baby, EW, who was born on 1 May 2014. Her mother is LW and her father is said to be TC. His paternity is to be determined by DNA testing.
2. On 11 April 2014 the local authority applied for an order under the inherent jurisdiction of the High Court that it be permitted not to disclose to the mother the care plan to remove her unborn child at birth. At a hearing on 15 April I granted that application and the local authority's application for a reporting restrictions order ('RRO'). Both applications were heard and determined in open court.
3. On 1 May 2014, within hours of EW's birth, an application for an emergency protection order was heard and granted by HHJ Wildblood sitting in the Family Court at Bristol as a judge of High Court level.
4. Mother and child were placed in separate wards at the hospital in Bristol. Mother had supervised contact with EW supported by her mother and grandmother.
5. LW was discharged from hospital on 2 May. Very sadly her mental health has deteriorated in the community and the Crisis team of the local mental health trust has been called upon to treat and support her. The mother is diagnosed with a condition known as hebephrenic schizophrenia. It has had and has a very serious adverse impact on her daily life.
6. On 6 May EW was discharged from hospital into the care of foster carers. It is a concurrent planning placement. The guardian has met EW and the foster carers. She is extremely pleased with the quality of care afforded by the foster carers.
7. I heard the local authority's application for an interim care order on 6 May 2014. I also considered whether the RRO should continue or whether it should be varied or discharged.
8. At the hearing before HHJ Wildblood he gave case management directions including an invitation for the Official Solicitor to consent to act as the mother's litigation friend. He directed a representative of the Official Solicitor to attend the hearing before me on 6 May.
9. At that hearing counsel and solicitors attended to represent the mother. They had not met the mother and, given she had been assessed in February 2014 by her treating consultant psychologist as lacking the capacity to litigate, they could not act without the benefit of a litigation friend. There was no representative from the Official Solicitor's office present at court. The local authority's solicitor kindly made contact with the Official Solicitor's office. In consequence, Ms Clift attended the hearing at very short notice. I am very grateful to her for doing so.
10. The Official Solicitor is a litigation friend of last resort. The local authority had undertaken an assessment of LW's mother as a possible carer of EW: the assessment was negative. It is not known whether LW's grandmother might put herself forward as a possible carer.
11. For those reasons and given the close and practical support both women provide to LW, I considered it inappropriate for either of them to act as her litigation friend. That is no adverse reflection on them; it is a result of the real potential for a conflict of interest to arise. In those circumstances and in the absence of any other suitable candidate, the Official Solicitor consented to act as LW's litigation friend and was so appointed.
12. The guardian supported the local authority's application for an interim care order. The Official Solicitor and the putative father neither consented to nor opposed the application.

Background

13. The mother, who is 24 years old, endured a difficult and disruptive childhood. In her mid to late teenage years she was diagnosed with a condition known as hebephrenic schizophrenia with predominant features of disorganised and incoherent thought processes. She is prescribed medication to control the symptoms of the condition and is regularly seen by her treating consultant psychiatrist and/or members of the mental health team. Her compliance with taking her prescribed medication and her co-operation with mental health professionals is very variable.
14. In 2010 a psychologist assessed the mother's global IQ as 63 which falls in the range of mild to moderate learning difficulties.
15. In August 2007 and again between December 2008 and September 2009 the mother was detained under the Mental Health Act 1984. Since then she has lived in the community but there have been many periods when she has disengaged from mental health services.
16. When it was discovered the mother was pregnant she was again referred for mental health support. A referral was made to the local authority in December 2013. Thereafter six multi agency professional's meetings have been held.
17. In February 2014 Dr G, the mother's treating consultant psychiatrist, reported that the mother was likely to pose a significant risk of harm to her unborn baby, herself and professionals if she were to be informed of the local authority's plan to seek to remove the child at birth. She further reported that the mother's 'mental health deteriorated gradually during the pregnancy' and that given she was pregnant her prescribed medication had had to be reduced to a relatively low level.
18. The mother attended for an antenatal scan on 9 April when she presented with paranoid and hallucinatory thoughts. She made threats to leave the clinic and was racially abusive. The social worker considered that the mother had no awareness of the concerns for or the needs of her as yet unborn baby. She was of the view that the mother is highly resistant to professional advice and has a tendency to violence.
19. There was a real concern held by the social work and health care professionals that the mother would not be aware when she was going into labour and might not understand what was happening when she did so. A further complicating factor was that the foetus was in the breech position and unless it could be turned by the elective cervical inversion ('ECV'), it was most likely the baby would have to be delivered by caesarean section ('CS').
20. In light of the mother's mental health condition and her volatile behaviour the local authority formulated a care plan for removal of the child at birth and made the application under the inherent jurisdiction.
21. On 11 April the application for an order under the inherent jurisdiction came before Baker J for directions. The issue was raised as to whether the mother had capacity to consent to medical treatment, in particular an ECV and/or a CS. Further the issue was raised whether orders should be sought in the Court of Protection to permit the relevant trust to perform an ECV and/or a CS if the mother was assessed as lacking capacity to consent to either procedure and/or other medical treatment.
22. Accordingly Baker J directed the University Hospital Bristol NHS Foundation Trust ('UHBT') should attend the hearing before me on 15 April. At the commencement of that hearing no representative from UHBT was present at court despite it having been served with and/or given notice of the direction made by Baker J. I was shown a letter dated 14 April written by the trust's solicitor which indicated:

a) it was for the trust and not for the local authority to make any applications to the Court of Protection;

b) the mother was to undergo a capacity assessment to consent to medical treatment on 17 April; and

c) the trust did not intend to appear at or be represented at the hearing before me.

23. I considered that to be a wholly unsatisfactory state of affairs. When my views were made known in a telephone call to the trusts' legal department they instructed counsel, Ms Hallissey, who appeared before me later that day.
24. The hearing of the Court of Protection and its outcome is the subject of a separate judgment namely NSC v LW, UHBT, NBT and AWP [2014] EWCOP 3. Suffice to say that ultimately the mother was found to have capacity to consent to medical treatment including a CS. Therefore no order was made.
25. EW was born by CS under epidural anaesthesia. Following the birth the mother was unable to make decisions in the best interests of the child. When advised the baby required an injection of Vitamin K the mother refused and asked 'Am I going to die'. After the making of the emergency protection order the local authority consented to the treatment.
26. Sadly, as mentioned earlier, the mother's mental health has deteriorated since her discharge from hospital. It has been necessary for the mental health crisis team to attend on her.
27. Very little is known about the putative father, TC. Until the hearing before me on 6 May, he had not cooperated with the local authority. Late last week he instructed solicitors who instructed counsel to appear at that hearing. Through no fault of theirs they had few if any instructions.

Application under the Inherent Jurisdiction

28. At the hearing on 15 April I granted the local authority's application for permission not to disclose the care plan to the mother prior to the birth of the baby.
29. In a short extempore judgment I observed that on the evidence before me, especially that of Dr G, I was satisfied that "it is plain that the mother will present a very real risk of harm to herself and a very very real risk of physical harm to the child" if she were to learn of the local authority's plan of removal at birth.
30. I now give my full reasons for that decision.
31. I recognise the order sought by the local authority is extremely unusual. I have had full regard to the decision of Munby J, as he then was, in re D (Unborn Baby) [2009] 2 FLR 313.
32. He postulated the following test at paragraph 11:

"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".

Later at paragraph 15 he said:

"I have no hesitation whatsoever in saying that in the highly unusual circumstances of this case that very exceptional step is, as it seems to me, entirely justified and indeed imperatively required in the interests, in the period immediately following birth of the as yet unborn child".

33. The order sought in this case by the local authority is at the extremity of what is permissible under the European Convention. It is only in an extreme case that such a Draconian and highly exceptional course of conduct will be permitted.
34. I take account of the following matters when considering whether this is an extreme case which justifies the making of the order sought by the local authority :

a) the mother has a serious mental health condition;

b) she is not always compliant with her treatment regime;

c) in recent days her mental health has deteriorated;

d) she has a history of being violent and abusive;

e) she is unable to control that violent and abusive aspect of her personality;

f) she frequently has real difficulty concentrating on or understanding a range of basic issues;

g) she has learning difficulties with a very low IQ;

h) she has a history of not co-operating with social work and health professionals;

i) EW is her first child and she has no experience of caring for so young and vulnerable a child; and

j) there is no member of the wider family yet identified who could safely care for EW;

35. In those circumstances I am satisfied that if the mother were to learn of the plan to remove her child at birth there is a very real risk she would harm herself and a very very real risk that she would cause physical harm to her baby. In particular it is highly likely that she would not co-operate with the professionals involved with her, would seek to avoid contact with them and would conceal that fact that she was in labour. Her midwife, BC told me in evidence that if the baby remained in the breech position and labour started before planned surgery the baby could be starved of oxygen and die.
36. On the facts of this case and the conclusions I have reached on the risks posed by the mother to the baby and to herself, I am in no doubt whatsoever that the order sought by the local authority was a proportionate response to the identified risks and was essential to secure the child's safety.

Reporting Restrictions Order

37. A RRO, even a limited and focused RRO, is a Draconian order which is not to be made routinely or because it might help children. It must pass the high hurdle for granting of an order and must be shown by the applicant to be necessary.
38. On the facts of this case Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms are engaged.

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.

39. Section 12 (4) of the Human Rights Act 1998 provides that:

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available o the public, or (ii) it is, or would be, in the public interest for the material to be published, [and] (b) any relevant privacy code.

40. The seminal case on the approach to be adopted when a court is invited to make a RRO is the decision of the House of Lords in Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593. It was held that an intense focus on the comparative importance of competing rights under Articles 8 and 10 was required. Neither Article has presumptive weight over the other and the proportionality test must be applied to each.
41. The application under the inherent jurisdiction for permission not to disclose the care plan to the mother, and indeed the application for a RRO, were, of course, heard in open court.
42. Mr Aston, of the Press Association, was the only representative of the media present in court when the application for a RRO was heard. The press and broadcast media had been served by the local authority with notice of the application either by the Copy Direct service or directly. Mr Aston did not raise any objections to a time limited RRO.
43. The local authority sought a RRO to ensure that the mother would not learn of the local authority's care plan to remove her child at birth. In light of the risks I found to the mother and to the baby if the mother had knowledge of the plan, it was vitally important and an absolute necessity that there should be no reporting of this case before the birth.
44. After birth there would be no reason and no necessity to prevent the reporting of this case, at least, in an anonymised form.
45. I undertook an intense focus on the comparative importance of competing rights under Articles 8 and 10. On the exceptional facts of this case I was wholly satisfied that the balance fell decisively in favour of making the RRO. It was the only proportionate course to be taken to secure the safety of the mother and of the child. The restriction on the press would be of short duration – a matter of days rather than months or years.
46. Accordingly I granted the RRO as sought.
47. At the hearing on 6 May it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order.

Interim Care Order

48. In considering the application for an interim care order I bear in mind the Article 8 European Convention rights of the mother and of EW. Where there is a tension or conflict between the rights of the child, on the one hand, and the rights of a parents, on the other, the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR 210. I take account of the paramountcy principle of s1 (1) and the welfare checklist of s1 (3) of the Children Act 1989.
49. The taking into care of a newborn baby is an extremely harsh measure requiring extraordinarily compelling reasons: P,C & S v UK [2002] 2 FLR 631, paragraph 116 and K&T v Finland [2001] 2FLR 707.
50. In our domestic law s 38(2) of the Children Act 1989 provides that:

"A court shall not make an interim care order……unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31 (2)".

51. What are the extraordinary compelling reasons for continuing the separation of this mother and her new born baby? Are they reasonable grounds for believing that the conditions mentioned in s31(2) are satisfied in this case?
52. I note the application for an interim care order is supported by the children's guardian and that the mother, by the Official Solicitor, and the father neither consent nor oppose the making of the order.
53. I am wholly satisfied that there are extraordinarily compelling reasons for keeping EW, for the moment, in public care and that there are reasonable grounds for believing she is at risk of suffering significant harm if she were to be returned now to her mother's care.
54. Those reasons are set out in paragraphs 33 – 35 inclusive above.
55. In the premises there is:

i) a very very real risk of the mother causing EW harm were she to be in her care, or, at least, of the child coming to harm in her mother's care and

ii) it is inconceivable that the mother could provide safe or adequate care for EW at this time.

Conclusions

56. I am in no doubt that the only order I can make in EW's welfare best interests is an interim care order.
57. I have approved agreed case management orders to ensure this matter is completed within 26 weeks. The final hearing is to be listed before me in early October.
58. I wish to express my gratitude to all counsel for their help and assistance and to the solicitor for the local authority who has worked tirelessly and efficiently in the preparation of the various applications in this complex case.