Posted on | December 4, 2013 | 12 Comments
[UPDATE 10.20am Thurs 5th Dec : Late last night material was published which names both mother and child and which shows a photo of both of them (face of child pixelated. I'm not linking to it. Any comment linking to it or referring to it will be edited or deleted. Read this post especially the bit about s97(2) of the Children Act 1989 to see why. I am agog, but I can't comment on it.
Further update 10.35am Sorry, forgot to link to the statement from the Health Trust on this which I had not seen when I published last night.
Further update 10.41 On reading the new material more carefully it may be that the naming of the mother is permitted. Further, the naming of the child is by way of pseudonym only. (See how easy it is to correct an error when you get it wrong?) I am trying to get hold of the Charles J judgment relating to a reporting restrictions order judgment yesterday and will link to it when up. If permitted I will link to the article in question.
Update 14.00 Worth a read too: Birthrights blogpost on the medical decision making and patient involvement]
A lot has happened since Monday night, when I posted a blog on the case which we now know as Re P (A Child). In view of the level of interest in it I felt it was right to update my previous post. Although I have added several post scripts to it this has become unwieldy, hence this fresh post.
The original post is here.
I’m going to run through a brief chronology of new sources of information first and then make a few observations.
- Yesterday (Tuesday 3rd) Pink Tape received over 16,000 hits. That is significantly more than it has ever received in a whole month.
- Also yesterday the judgment relating to the making of final care and placement orders in relation to P (the initial given to the child concerned in the County Court) was released. That judgment can be found here : P (A Child)  EW Misc 20 (CC) (01 February 2013).
- The UK Human Rights blog posted.
- Yesterday afternoon Essex made an unsuccessful application for a reporting restriction order. The application was refused because they had failed to put the press on notice.
- This morning a pre-recorded interview with the Mother’s Italian Solicitor was aired on BBC Radio 5 Live. My note of that interview is here (c-section italian lawyer.doc). It is not verbatim, but it’s a pretty good note as I touch type at a reasonable rate. Credit to BBC Radio 5 Live – they read out the WHOLE judgment verbatim in the care case, and the interview was careful and sensibly pre-recorded. The reading of the judgment no doubt does not make for “good radio” but was important context and balance.
- Around lunchtime the Judiciary website published a statement about the application for reporting restrictions.
- Today the Mental Health and Capacity Law blog published a helpful explanation of how the Court of Protection operates and what might have happened in the Court of Protection part of this case.
- Subsequently, this afternoon Mostyn J’s decision authorising the delivery of the child by means of c-section was published. That judgment, annotated by the judge this week, is to be found here : In the matter of AA 23 August 2012.
- Suesspicious Minds blog has considered the Mostyn J judgment here.
- Carl Gardner at Head of Legal has written an excellent blogpost “Booker, Hemming and the “forced caesarian” case: a masterclass in Flat Earth news” (he’s done it whilst I’ve been writing this one, so there is some duplication – his is better)
So what can now be said of things? Read more
Posted on | December 2, 2013 | 88 Comments
UPDATE Weds eve 4 Dec : I’ve now written an updating post on this topic here.
Over the weekend a highly concerning story began to be reported in the press – the headline and byline read as follows: “‘Operate on this mother so that we can take her baby’ A mother was given a caesarean section while unconscious – then social services put her baby into care.”
It started in the Sunday Telegraph, courtesy of Christopher Booker, a journalist well known as a critic of the family justice system – and it spread like wildfire. It started, it was said, when the woman “had something of a panic attack when she couldn’t find the passports for her two daughters, who were with her mother back in Italy.” This led to her calling the police, family members on enquiry raising concern about her mental health conditions and non-compliance with medication, and ultimately to being detained hospital under the Mental Health Act, where she remained until the c-section described above.
Within hours of the original post another Telegraph journalist, Colin Freeman, was reporting that “Essex social services obtained a High Court order against the woman that allowed her to be forcibly sedated and her child to be taken from her womb” by caesarean section “according to legal documents seen by this newspaper”. The case, it was said “raises fresh questions about the extent of social workers’ powers”. The report stated that “The woman…was forcibly sedated. When she woke up she was told that the child had been delivered by C-section and taken into care.”
Posted on | December 1, 2013 | 8 Comments
A curious, concerning and controversial news item has appeared in the Telegraph. It is entitled “Child taken from womb by social services”. Sadly it raises more questions than it answers – important questions. Who knows what the hell has actually happened? I don’t. I can’t work it out at all. Even from the opaque press release from a solicitor involved.
It has caused a lot of twittering and a lot of unsuccessful boolean searching on bailii. It has caused a spike in my traffic, in particular to my posts on Christopher Booker, and a lot of incoming traffic from some hairdressers (forum.salihughesbeauty.com/showthread.php/12572-Essex-sedation-and-cesarean-story). Curiouser and curiouser.
Twitter says all will be revealed soon. Twitter says it is probably misreporting. I’m inclined to agree – but in any event there is a deal of clarification required urgently. There is no point in speculating with such a paucity of hard information.
If someone sends me a link to any Court of Protection or Family Division judgment when it appears (as I’m sure it must) I will post it.
Posted on | November 28, 2013 | 14 Comments
I’ve written before about Clare’s Law. First in the Guardian, and subsequently on Pink Tape. The latter was just as the pilot scheme was being consulted on, in November 2011. So you might think it rather odd, and I might think it rather rude, that the Telegraph would extensively quote my 2011 blog post some two years later when the situation is rather different. Had they asked I would have told them that my views then were my views then and should not be taken as a comment on the success of the pilot or the roll out of the scheme more broadly. But they didn’t ask. That irks a bit.
But it has prompted me to look at what I said then against the information now available – to see if I was right to be a bit skeptical about the potential of Clare’s Law to make a meaningful dent in the domestic violence epidemic.
Looking back, the things I was worried about in 2011 were broadly these:
- that women* who were told there was nothing to disclose might be lulled into a false sense of security
- that resources might be overstretched due to demand and proper support for victims or potential victims might not be available
- that the cost might be disproportionate to the benefit
- that disclosing information in itself would not make women less vulnerable to patterns of abusive relationships in future
- that there might be inconsistency of approach as between forces
Since then a couple of important things have happened. Legal aid has gone for private family disputes, except those where there is evidence of dv. Funding for domestic violence organisations and rape crisis centres has been slashed in many areas. And the pilot has been run for a year (in some ares a bit longer) in four areas of the country.
Posted on | November 23, 2013 | 15 Comments
No time to tell you about it in detail, but here is another new judgment (C (A Child), Re  EWCA Civ 1412 (21 November 2013)) regarding another private law train wreck that has careered off the rails and gone completely off road…(to mix my transporty metaphors)… Nothing at all to do with the absence of lawyers of course. Not a harbinger for the future AT. ALL. *deadpan face*
Posted on | November 17, 2013 | 8 Comments
I’ve been reviewing the Children & Families Bill in light of the Child Arrangements Programme proposed by the working group on private law proceedings and the more I resolve one question the more another pops up.
I went to check whether or not enforcement orders and contact activity directions would be applicable to all flavours of CAO – to see if the current anomaly where there are more enforcement tools available in the case of a contact order than a shared residence order is replicated. Answer : no, that anomaly will be ironed out. You can enforce a CAO, any CAO in all the ways presently available to you if you were the holder of a contact order.
But what I now don’t understand is what will happen to residence and contact orders that are in force as at the date of the Act coming into force. The Act is silent on it, and as far as I can tell all references to such orders are eradicated from the Act. Where does this leave the status of pre-existing contact orders? They cannot be enforced using s11J, because new s11J will not apply to contact orders. What will happen if an application to vary a contact or residence order is made – will the provision of such an order automatically be transposed into a child arrangements order with the same structure (that this would be a pretty mechanical task rather exposes the myth that a CAO will be ANY different to a RO/CO but that is another post entirely) or will the conversion need to be justified? More straightforward would be that an existing RO or CO should be “treated as” a CAO with the provision that a child should live with or spend time with etc. But it’s not in the Bill.
This is all odd. Whilst it has been suggested to me that this will be dealt with in a SI I don’t think this can be right – primary legislation is scheduled to repeal ROs and COs out of existence, they cannot be reintroduced by secondary legislation. I’m genuinely confused by this. I’ve not gone through the Bill with a very fine toothcomb, so I may have missed something, or my recollection of retrospectivity / statutory interpretation etc may be awry…If somebody sharper than I knows the answer please put me out of my misery and post a comment….I MUST have it wrong somewhere as this is too daft a thing for the draftsmen to have left out…
On a more positive note *hollow laughter* … Private law stats for Oct 2013 are down 8% on the same month last year. Don’t panic! The tsunami of litigants in person is cancelled. Yes that’s right folks, they’ve given up and gone home before they even began. Problem solved eh?
More on the “CAP” later. Worn out by my own sidetrack….
Answers on a postcard please…
Posted on | November 13, 2013 | 9 Comments
In fact, that’s a nice pun but entirely unfair (regular readers will know this is not something that generally stops me using a good pun once thought of). Cobb J’s committee has reported on private law, and it makes many proposals and politely passes back some bucks. To government, to those responsible for “policy”. Like the one about just how the courts are to deal with cases that genuinely require experts but for which there is no mechanism for payment. It’s easy to give something the committee treatment. But not even a Cobb Committee can’t solve unanswerable riddles any more than Bob the Builder can fix it without his tools….
Interestingly, no 26 weeks proposal and unsurprisingly many pleas for more and better information for LiPs.
I planned to blog properly about all this tonight but am feeling rather unwell. And its getting late.
Link to the material is here (click through to Guidance Locator). I will post a proper blog in due course… It is important.
Incidentally, it comes just as the stats for private law issue have dropped by 9% (Oct 13 compared to Oct 12), following a pretty massive post-LASPO spike. I think its pretty clear that was a lag from last minute certificates granted just prior to 1 April, the question is whether or not the 9% drop is representative of the underlying issue rates for those now ineligible for public funding. Have they given up already? Or will we see rates pick up again?
Anyhoo. Off to bed. Have a private law case tomorrow in respect of which public funding and expert evidence has been crucial…As with all these cases I wonder what would happen if it had been post 1 April?
Posted on | November 12, 2013 | 3 Comments
The President is listening in people. But unlike certain other Presidents this is not covert surveillance. It is transparently so.
Posted on | November 12, 2013 | 10 Comments
So this idea about paying mothers with £200 shopping vouchers to breastfeed for six months. That really narked me this morning on my drive in.
To distort the words of Tony Hancock, it’s like a quid for a boobful. More like a penny for a jug. Talk about trivialising the major commitment that breastfeeding is. Talk about failing to appreciate that the reasons women choose the bottle or stop breastfeeding are many and complex. Talk about failing to acknowledge the mother’s experience.
Don’t kid yourself that ANYONE is going to spend an hour in every four continuously latched onto a sucking machine day in day out for a full six month period for the price of a weeks sodding groceries. A lot of my clients are mums from difficult backgrounds. Most, but not all, go with the bottle. A £200 voucher in the hand would no doubt be welcome to many of them, but it is a feint and distant promise for a mum confronted with the daily reality of caring for a newborn. 6 months is a far far horizon when you are kneedeep in size one nappies. It may well be true that breastfeeding saves on the faff of sterilising and washing up bottles, but it also prevents a mum from sharing the load with dad or with granny. Breastfeeding can add pressure in a very concrete way because it is by it’s nature solely mum’s responsibility (unless you have a wet nurse). There is minimal respite when you are breastfeeding.
No new Mother, whether she be middle class, working class, of whatever level of education, needs to be undermined. The pressure to be the perfect mummy is insidious, overwhelming, and often self inflicted. Breast is no doubt best for a number of reasons, but it is not the only factor to consider. A mother who is in constant agony, distressed, distracted by her own sense of failure is in no position to be the best mother she can be.
I successfully breastfed one child to ten months, having gone back to work after 3, and although I couldn’t have done it without a breastpump and a fair amount of top up by the end, it was rewarding if hard work. Second time around was a nightmare. It was agonising, demoralising, awful. I wept for six weeks (or that is at least my recollection). It was a round of continuous “you can do it” messages from doubtless midwives and breastfeeding specialists, interposed with prescriptions for more antibiotics. I should have given up long before the 3 months but I’d done it once and could not countenance failing to give my second child what I gave my first. Of course I was a fool, but happily neither child is, so far as I can tell, broken as a result. And I can tell you now that if any kindly woman had attempted to incentivise me to press on through yet another bout of mastitis by waving a poxy voucher in my face she’d have got a pretty tart reply.
If you’ll excuse a pun. This idea sucks.
Spend £80 on providing women with a decent electric breastpump and a stock of nipple cream instead – that would be better than a squirt in the eye.
Posted on | November 6, 2013 | 3 Comments
Please visit Suesspicious Minds for a consideration of the issues raised by an article in the Gazette about DJ Crichton’s views on the PLO. It articulates some of the concerns I know many share (myself included), and some of the ambivalence that we feel about the new PLO pilot and proposed statutory reform. It is rare to hear such non-conformist views these days, and even when they are articulated they are often drowned out by the roar of the rushing cascade from the President (pun intended) and the constant dripping of authority from the Court of Appeal about the importance of intellectual rigour in adoption cases. For we have all seen cases where delay has run wild, and a grave injustice is done. And I think if we are honest, we may now appreciate that there was a real need for a major shake up of the way we approach delay, and for the imposition of some form of constraint or structure. Professionals were lazy and late. Lawyers did take the piss. Judges eyes were sometimes off the ball. BUT. But but but. I can think of a number of cases where there has been unnecessary delay caused by parties other than parents or children and where in order to reach a fair and right outcome it is necessary to postpone a conclusion until beyond 26 weeks (culture change amongst lawyers and social workers is not yet complete). And I can think of a number of cases I have dealt with where rehabilitation has been possible but which under the new regime would be highly doubtful. And I can think of a number of frightening stories of misinterpretation at FPC level of the 26 week rule – where in essence we make it as fair as we can within 26 weeks, but if it hasn’t been done or can’t be done (for whatever reason) in time for 26 weeks thats tough. End of.
Its a difficult balance. It would be easier to identify and argue for those adjournments where on the merits an extension beyond 26 weeks is justified if we were not still dealing with cases where 26 weeks is rendered necessary by poor case management or preparation by the parties. The last two final hearings I’ve dealt with have been adjourned because they were not ready – if IRH’s were being properly utilised this should be a rare occurrence.keep looking »