England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2014

Mr Justice Keehan:

Introduction:

1. On 16 May 2014 I heard two applications by the Applicant local authority, namely:

i) an application under the inherent jurisdiction of the High Court for permission not to disclose to the First Respondent, M, the care plan for her unborn child namely to remove the child at birth; and

ii) a reporting restrictions order to prohibit a publication of the above application, the hearing of the same and the order made by the court.

2. I granted those applications at a hearing on 20 May at which further evidence in support of the applications had been filed. I reserved judgment. The putative father, F, I should make clear, was not a party to those applications although he was made a party to subsequently issued care proceedings.
3. On June 1 2014 M gave birth to C at the Hospital. The lay justices sitting in the Family Court granted the local authority's application for an emergency protection order on 2 June. The order was made to last until midnight on 6 June. C was then removed from his mother and was placed in foster care.
4. The local authority's application for a care order and for an interim care order was allocated to be heard by me on 3 June 2014. I adjourned the hearing to 6 June, in particular for the following three reasons:

i) I was not satisfied with the evidence relied on by the local authority in support of its application.

ii) Further, the local authority had not notified the mother nor the putative father of the applications. Accordingly, neither were present before the court nor represented.

iii) Before I went into court on 3 June my clerk received an email from one of the mother's treating consultant psychiatrists Dr Z, setting out that his professional opinion and views had been mis-represented by the local authority in the application for a care order and in the social worker's statement filed in support of the same.

5. I was dismayed by the actions of the local authority's legal department subsequent to the hearing on 3 June. The parents were not formally notified of the hearing listed on 6 June until the very late evening of 5 June. Further, Dr Z was not notified of the direction that he prepare an addendum report on the current state of M's mental health until the late afternoon of 4 June. The Official Solicitor was not given notice of the hearing until the late afternoon of 5 June.
6. At the hearing on 6 June the local authority and the children's guardian were present. The putative father, F, attended in person. The mother was not present nor represented. Ms Clift of the Official Solicitor's Office however was present in court, because the mother had been assessed as lacking capacity to litigate, although the Official Solicitor had not yet been formally appointed to act as her litigation friend.
7. In light of the failings identified in paragraph 4 above, I required the Chief Executive of X County Council to prepare a letter explaining these events. She did so. It appears a very junior and inexperienced member of the legal department was entrusted with preparing the case for the hearing on 6 June. She was unsupervised by a more senior colleague because of holiday commitments. I was assured such events would not occur again and that provision would be made for the supervision of junior members of staff when more senior members were away on vacation.

Background

8. At the time of the application under the inherent jurisdiction on 16 May, M, who is 24 years old, was in the late stages of her first pregnancy. Her expected date of delivery was 28 May.
9. She has been diagnosed with a mental disorder known as schizoaffective disorder. In February 2014, following a deterioration in her mental health, M was detained at a psychiatric hospital under s3 of the Mental Health Act 1983. This was not the first time she has been an inpatient for psychiatric treatment.
10. It is the opinion of M's treating consultant psychiatrists that she lacks insight into her mental illness and thus does not believe she requires treatment for the illness. Since mid April 2014, when she came under the care of Dr Y, she has refused to take any medication resulting in a further decline in her mental state. She suffers from persecuting delusions including a belief that mental health services are 'murderers' and will murder her and her unborn child. She has marked disorder of thought form, guarding of affect and an abnormality of expressed mood, associated with marked fear and suspicion.
11. Dr Y assessed M's capacity to litigate at a meeting on 15 May. She reported that M,

"was unable to tolerate interview for more than 15 to 20 minutes, walked around the room when agitated due to paranoia about my medical questions and then exited the room. Her paranoid belief is that my wish to interview her is for sexual reasons….. Her answers are very difficult to follow and her reasons/statements difficult to confirm due to her disorder of thought form….."

Dr Y concluded that M lacked the capacity to litigate. This conclusion was subsequently confirmed by Dr Z as a result of the assessment he undertook on 21 May.

Law

Application under the Inherent Jurisdiction

12. The application by the local authority, not to disclose to the mother the care plan for the removal of her baby at birth, is an extremely unusual order for the court to approve.
13. I have had full regard to the decision of Munby J, as he then was, in Re D (Unborn Baby) [2009] 2 FLR 313.
14. 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".

15. 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.

Reporting Restrictions Order

16. 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.
17. 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.

18. 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 to 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.

19. 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.

Interim Care Order

20. In considering the application for an interim care order I bear in mind the Article 8 European Convention rights of C, the mother and of the father. 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.
21. 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.
22. 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)".

Evidence

23. At the hearing on 20 May I had a statement from the social worker and two reports from Dr Y.
24. Dr Y reported that:

"M suffers from persecutory delusions, including a belief that

mental health services are "murderers" and will "murder" her and her

unborn child. She feels "scared" as a consequence. She described this in

terms of a conspiracy and believes we know the details but will not

admit this.  She presents as labile in mood, with at times a mixed mood

(depressed and elevated mood simultaneously). She has marked disorder of thought form (an abnormality in the stream of thought, and a diagnostic

feature of some psychotic illnesses) and at times pressure of speech

(rapid speech occurring with an elevated mood). She also presents with

guarding of affect, an abnormality of expressed mood, associated with

marked fear/suspicion. She believes I am draining her "energy" and that

of her unborn baby, by being in the same room as them. She described

this in terms of me literally as she sees it, exerting energy-draining

control from across a room. She believes this causes her to feel

"depressed" and at some interviews with me has also said that staff's

influence makes her feel "suicidal". She has denied suicidal intent.

She speaks in graphic and disinhibited terms about what she believes are

connections between various sexual acts and her fixed paranoid beliefs

about what is happening on the ward. This is very difficult to follow

due to the severity of disorder of thought form, however she has clearly

indicated that she believes several female professionals including me

are interviewing her with the purpose of the professional having sexual

relations with M's partner."

"She is even more wary and suspicious of social services and believes

they are party to the mental health service conspiracy. Engagement with

obstetric services was poor until an approximately one month period

before transfer to this ward. This engagement improved for that month

but has declined again. She refused to attend the last two Obstetric

review appointments, even when the reportedly significant obstetric

risks as per expert advice) were emphasised. She expressed a view that

one such appointment was something to do with what she sees as the

mental health service conspiracy.  She eventually attended the second

when assisting ambulance and other additional staff arrived. There was

police support for the transfer process.  She has been verbally

aggressive to escorting mental health staff."

"She is already floridly psychotic and her condition deteriorating due to

continued lack of anti-psychotic treatment. Intramuscular medication

treatment has been charted for emergency sedation if needed, but is used

with relative caution in pregnancy and at this very late stage in

pregnancy. The consensus of treating clinicians (obstetric and

psychiatric) is that she would be much more likely than not to become

even more acutely distressed and agitated if the care proceedings plan

was shared with her at this late stage, so close to what in the

circumstances is likely to be a difficult transfer to the obstetric unit

and Delivery."

25. Dr Y told me that the mother had stopped taking her medication. Accordingly there had been a serious deterioration in her mental health. The mother was not co-operating with the medical professionals who were to provide her with antenatal care. She continued to have paranoid delusions and believed the social workers and mental health professionals were intent on murdering her and/or her baby.
26. Dr Y was of the opinion that, in light of her poor and deteriorating mental health, there was a very real risk that if the mother was told of the local authority's care plan for a removal of the child at birth, M would harm herself and/or harm her unborn child.
27. M had been aggressive to mental health professionals and a fellow patient. She was highly emotionally labile and she was verbally abusive and threatening.
28. On the application of the hospital trusts responsible for the mother's obstetric and mental health care I was invited to make permissive orders for the restraint and medical treatment of the mother if she became obstructive during her labour. I made the orders sought, including a reporting restrictions order, on the basis that absent such there was a very real risk that physical harm would be suffered by the mother and/or her unborn child if M became obstructive during labour.
29. Happily, as matters turned out, the mother gave birth naturally, as she had wished, without any need for restraint or invasive medical treatment.

Discussion

30. When considering the application under the inherent jurisdiction I recognised that giving permission to the local authority not to notify the mother of the care plan was an extremely unusual order.
31. I took account of the following matters when considering whether or not to make the order sought:

a) the mother has a serious mental health condition;

b) she was not compliant with her treatment regime;

c) her mental health has deteriorated;

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

e) she is unable to control her behaviour;

f) she has real difficulty in understanding and/or concentrating on basic issues concerning her obstetric and/or mental health needs;

g) she is not co-operating with the mental health or social work professionals;

h) she believes the mental health professionals and social work professionals are part of a conspiracy to kill her and/or her unborn child;

i) this is the mother's first child and she has no experience of caring for a small baby; and

j) there is no family member available to support the mother or to care for the baby once it is born.

32. In the premises I was satisfied that there was a very real risk of physical harm to the mother and/or her unborn child if she were to be informed of the local authority's care plan.
33. 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.
34. 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 CopyDirect service or directly. Mr Aston did not raise any objections to a time limited RRO.
35. 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.
36. After birth there would be no reason and no necessity to prevent the reporting of this case, at least, in an anonymised form.
37. 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.
38. Accordingly I granted the RRO as sought.
39. At the hearing on 13 June it was agreed by all parties that the RRO had served its time limited purpose. I, therefore, discharged the order.
40. When the application first came before me on 3 June, I was dismayed that the local authority had not obtained an up to date report from Dr Z. In my view when considering the local authority's care plan to continue the separation of mother and child, it was vital to have a report from the mother's treating consultant psychiatrist.
41. Further I was extremely concerned to learn that following the baby's removal to foster care on 2 June, there had been no contact between mother and child. The local authority told me it proposed to undertake a risk assessment of whether contact could take place and in what circumstances. It was suggested the local authority would need two weeks to undertake the assessment. I made it plain that such a delay was wholly unacceptable.
42. When the matter came back before me on 6 June I had a report from Dr Z dated 5 June. For the purposes of preparing that report he met with the mother in the morning of 5 June.
43. The mother and the father both had appointments to see their respective solicitors the following week.
44. Dr Z confirmed the mother did not have the capacity to litigate. He reported that the mother:

""remains very paranoid and finds great difficulty in trusting myself or any other mental health staff. This is evidenced for example by her extreme reluctance to talk with me in the presence of the Children's Services Social Worker. It is noted however that once she did agree to talk she relaxed and was able to have a conversation. M remains of the opinion that she is not mentally ill and that she does not require medication for mental illness. (I note that she is in fact taking this medication each day as prescribed). She continues to have quite marked thought disorder. This is evidenced by great difficulty that she has in being able to succinctly and appropriately deal with, discuss, evaluate and consider ideas. Her statements tend to be long and rambling with multiple repetitions of phrases and themes throughout.

There was no evidence at interview of any ill will of any kind towards C. In fact M appears to be very appropriately concerned for the welfare of C and to wish to have appropriate contact. She was able to say that she would be very keen to see C in the company of Children's Social Services and staff from the ward in a safe area for a period of time and was able to understand that following this C would have to leave to go back to Foster Care. "

And later that:

"My opinion, based on M's presentation and experience with other people, is that M's mental state is likely to improve significantly if she continues to take her medication as prescribed. However my opinion is also that, should M stop the medication in the form of antipsychotics, that this would inevitable lead to serious deterioration in her mental health resulting in almost certain hospital admission. "

"I am also of the opinion that it would be safe for M to receive visits from C in the company of Children's Services, and with M accompanied by staff from the Ward, in the Family Room at the Hospital that is used for such purposes.

I have taken care to review with M today the implication of such visits including the fact that there would be staff present and that C would have to leave after a period of time. She was able to accept this without any problem. There was no evidence from what she said or from her behaviour that suggests there would be physical risk to the baby from her. In order to safely manage any potential risk the presence of staff from Children's Services and the Ward would be required for these contact visits."

"I can confirm that there has been sufficient improvement in M's mental health on medication to the point where I now believe it to be safe for there to be contact between her and the baby."

45. In light of those opinions and conclusions it was agreed that regular supervised contact would take place between the mother and her baby at Hospital.
46. In relation to the application for an interim care order I had to consider 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?
47. On the basis of the evidence of Dr Z I was satisfied that there were reasonable grounds for believing that the threshold criteria of s 31(2) of the 1989 Act were satisfied. The child would be at risk of physical and emotional harm if left in his mother's care.
48. In the premises the children's guardian supported the local authority's application for an interim care order.
49. F did not oppose the making of an interim care order. He agreed to undergo DNA testing to establish if he was the father of C. Subsequent testing has established that he is the father. He was pleased to be offered supervised contact with his son and put himself forward to care for C.
50. No submissions were made on behalf of the mother in support of or arguing against the making of an interim care order. In the light of the evidence of Dr Z I was wholly satisfied that it was necessary for C to remain in foster care under an interim care order.
51. Accordingly I made an interim care order. Both mother and the father have had separate contact with their son since the hearing on 6 June. Unfortunately the mother's contact sessions have not gone well. Despite advice and support she was unable to understand her baby's needs or to meet them even in the environment of closely supervised contact. She was, for example, unable to support the baby's head or to understand why she needed to do so. The local authority proposes to keep the issue of the frequency of the mother's contact and of the father's contact and the circumstances in which it takes place under close review.
52. When the matter came before me for a directions hearing on 13 June 2014, all parties were represented. The mother was not present at court but the Official Solicitor had consented to act as her litigation friend and was so appointed.
53. In order to ensure this case is concluded within the 26 week time limit I listed the matter before me on 1 December 2014 with a time estimate of five days. I made various case management directions by consent.
54. The matter returns before me for a further case management hearing on 27 June.
55. Finally I wish to pay tribute to the father for two reasons:

i) not without much inconvenience he has made his way from his home county, under his own steam, to the hearings on 6 June and 13 June and arrived well before 9:30am on both occasions; and

ii) I had a note of the recording of his contact visit with C. It was one of the most moving contact recordings I have read. It is plain F is a loving, caring, and tender father who was very keen to care for his son. He was eager to receive advice and guidance and was receptive to the same.