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.”
On Sunday night I posted a short blog post asking for information when a judgment was published on Bailii. Lawyers found nothing, even though the baby was now 15 months old.
By Monday morning it was reported stateside by CNN. By Monday evening it was covered by the Independent and Guardian (and doubtless other papers). The Independent quoted John Hemming, who in typically hyperbolic style “said he hoped the incident would “shock people out of their complacency about the corrupt practices in the family court”. He told The Independent: “I think this has a fair chance of being the worst case of human-rights abuse I’ve ever seen. She wasn’t treated as a human being”. Drawing on and interpreting the Telegraph articles, the Guardian said “According to a report in the Sunday Telegraph, 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. The council said it was acting in the best interests of the woman, who was in Britain for work reasons, because she had suffered a breakdown, according to the newspaper”. At that stage Essex were confined to responding with the standard “Essex county council does not comment on the circumstances of ongoing individual cases involving vulnerable people and children” which is rolled out when standard reporting restrictions are in place (although the rules on reporting of family proceedings apply equally to newspapers this does not appear in practice to prevent the press from reporting cases they consider newsworthy).
The Telegraph published a response article from a solicitor with the headline “Child taken from womb by social services: it’s not always wrong”, which lent the paper a superficial appearance of balance, whilst undermining the piece with the chosen headline. That article appeared to be based upon the assumption that the account given by the Telegraph is accurate, that Essex applied for a caesarean in order to further the welfare of the child, and upon the mistaken premise that the Court of Protection has as its core purpose the protection of the child. It does not.
In the meantime twitter was ablaze with comments and outrage and in equal measure with questions and pleas to wait for the facts. Bloggers blogged (I recommend Suesspicious Minds blog for an accurate explanation of the legal framework under which the cases will have proceeded), and even Chami Chakrabarti offered a quote (always a sign of a media frenzy). Unnamed “Human Rights Groups” and anonymous “experts” were quoted sounding concerned, perplexed and outraged in turn. And, as is often the case with the cases reported by Christopher Booker, MP John Hemming was involved, and he made assertions of fact and claims about injustice suffered by the woman and child concerned, suggesting he would raise the case in the House.
By close of play on Monday 2 December all sorts had pitched in:
At some point the Mother’s solicitor issued a statement on his website, stating that he was “unable to discuss the facts, evidence or information in this case.” And that he had “a duty to ensure information relating to ongoing proceedings remains confidential. As such, we are unable to offer any comments or information relating to this case.”. Which was strange, since he was apparently quoted in the Freeman Telegraph article (and subsequently elsewhere) doing just that.
The British Association of Social Workers had intervened to calm the anti-social work lynch mob convening online, pointing out that “some of the coverage of this case has conferred on social workers a power beyond all recognition”, and that “The Daily Telegraph’s assertion that ‘A pregnant woman has had her baby forcibly removed by caesarean section by social workers’ not only reduces the debate to the absurd but makes a sweeping dismissal of the professional code to which doctors, who actually carry out such procedures, adhere.”, before regurgitating its usual line on the distinction between secrecy and privacy in family proceedings and closing with a rather stinging “Social work, as with other professions, must always be prepared to consider how it might do things differently but so too elements of the media with an axe to grind might question whether their prejudicial approach does anything to support improved public understanding or better public services.”
Also joining in was the official twitter account of the judiciary (@Judiciaryuk) had tweeted that the case was ongoing, had been transferred to the President of the Family Division and was now to be heard in the High Court.
And finally Essex County Council released a statement of facts (no doubt approved by the court in a hastily convened hearing that day) which dealt with the ongoing care proceedings as accurate and appropriate for release. I recommend that it is read in full.
And those of us who had said “wait for the facts” silently said “I told you so”.
Of course, this remains a case about which we still know very little. It remains a case about which there is a pressing public interest in a fuller explanation in the form of a published judgment. And now that it is with the President of the Family Division, well known for favouring transparency of proceedings wherever possible, that is highly likely to happen. But when that comes and in what form is a matter for decision by the court and based upon the unique facts of the case rather than an ill informed clamour for everything now or the demands of those determined to expose injustice.
What the Essex press release tells us is this:
Firstly, that Christopher Booker’s original description of the Mother having “something of a panic attack” may well have minimised the significance of the Mother’s mental health difficulties. They had led to the removal of two children from her care. They led to her being sectioned for a five week period. They were sufficiently serious for clinicians to make an application to the Court of Protection.
Secondly, that the claims made by the Telegraph about social workers securing an order for forcible caesarean were wrong. Whilst no doubt there were multi-agency meetings that took place prior to the delivery in which social workers will have been involved, the application was made by the Health Authority not social services, and on clinical grounds rather than in order to secure the removal of the baby. It follows that either The Telegraph did not see the legal papers as it claims, did not read or understand them properly, put two and two together from limited documentation to make five, or misrepresented what it had read. I do not know which. I do not much care. It is a grievous error. One that you might expect of unqualified citizen journalists, not from the real deal.
Also evident from the Essex Press Release is that there is a dispute of fact as to whether or not the Mother was able to see the baby after delivery. What we can surmise is that the court has approved the Essex statement before publication and that there is likely to be evidence that it is accurate (such as hospital records). There are myriad reasons why the Mother’s account as reported may be inaccurate – for example, we know that the Mother was unwell at the time and it is possible that she does not recall events accurately. But putting aside the question of whether or not the Mother’s account is in fact accurate, the extent to which the press reports appear to rely upon the Mother’s account or information that emanates from her or her supporters (filtered often through the lens of John Hemming MP who judging from the quotes appears to have only recent involvement and limited direct knowledge), is alarming. It is profoundly unhelpful for a hysteria to be whipped up in this way only for the Local Authority concerned to have to seek permission of the court to correct errors of fact, a process which takes far too long in the internet age to ensure that accurate information is available at the point of a story taking hold. A Local Authority can say only that it does not comment on individual cases unless and until released by the court to say more. This does not make for fair or balanced reporting and nor does it facilitate the aim of informing the public about matters of legitimate interest.
And finally, one can track through the first and second Telegraph articles and onwards into the Guardian articles, a sort of evolution of the story, not necessarily arising out of the provision of new information or evidence. So, whilst in the original article the distinction between the medical procedure and the removal of the baby is blurred, by the second it is gone altogether and the application has been made by the social workers for the purpose of removing the baby. By the time the Guardian adopts the Telegraph’s reporting Essex are apparently quoted as justifying their application for a c-section on the basis of the woman’s best interests (an application we now know they didn’t make). This is odd, because they are also quoted by the Guardian in the same article as saying that they can’t comment. It’s all pretty poor.
What is most concerning about this whole affair is that the essence of the story, the thing that has got everyone so exercised, is not apparently based in fact at all. This story is not just about enforced surgery upon incapacitated adults, which is not particularly unusual. What people have been most exercised by (and rightly so) is the idea of enforced surgery as a procedure recruited in support of a system of forced adoption. And of course the graphic imagery associated with a c-section has been employed for full impact. But there are a number of life threatening and urgent conditions that commonly arise in pregnancy and a c-section is sometimes medically essential to preserve the life of mother or child or both. For a clinician faced with a patient who needs (and perhaps does not want) such a procedure, and who is unable to give valid consent to it, a trip to the Court of Protection is essential. Again, we don’t know the facts, but I venture the above to illustrate that there are possible scenarios which render a decision to enforce a c-section on a mother with acute mental health difficulties both necessary and justifiable. The crucial distinction between the justification for a medical procedure and the justification for a removal of a child into care is what has been blurred and subsequently lost in the reporting of this case. Those issues are separate legally and in terms of jurisdiction and in terms of the public authority responsible for carrying them out, and the decisions were subject to separate legal sanction.
Perhaps there has been an injustice in this case. On the known facts the decisions the court has made are grave ones indeed. It is self evident that the events as we know them will have been traumatic and confusing and unbearable for the Mother. In itself that does not mean that the decisions that have made are wrong. Yet nor does an insider’s confidence in the operation of the system most of the time mean that the decisions in this case were right or properly made. We must simply wait and see. And when we have the information let us hope that somebody will report the case fully, accurately and fairly – criticising the court if it has got it wrong, perhaps criticising others if this “story” has no legitimate basis. And let us hope in the meantime that this frenzy has not impacted adversely on the child, or upon the mother or her case, nor upon her ability to focus on the sound legal advice one hopes that she is getting.
It is probably too much to hope that the irresponsible reporting of this case has not caused undue alarm for women with mental health difficulties who may be pregnant or trying. It is easy to imagine that the ramifications of this sort of thing might extend in unseen ways, to affect some women’s behaviour in terms of compliance with medication, a failure to report a re-emergence of symptoms during pregnancy, or reduced engagement with social work and other professionals and the consequent isolation of vulnerable mums-to-be from much needed support during and after pregnancy. I hope I’m wrong.
Post script Tues am : There is also a Daily Mail story which appears to contain rather better information, surrounded with typically heightened language. It appears to quote from the judgment of the court (and hence I’m not linking to it as I have seen nothing that indicates whether or not there is permission to publish it at this stage). And in it John Hemming takes the speculation one step further by stating “We do not know whether she was held in the UK as a favour for Essex social workers. We cannot know because of the disgraceful secrecy of the courts“. In response to which one might observe that there is presently no evidence to suggest that such a conspiracy existed (and plainly lots of information IS available to journalists regardless of the absence of an official transcript of any judgment).
Post script lunchtime Tues 3rd : Judgment in care proceedings (final care and placement orders) now released on bailii (P (A Child)  EW Misc 20 (CC) (01 February 2013)). Link to Daily Mail here (its now obviously ok to publish it). This is NOT the decision re the c-section. Further, this judgment raises a number of questions and concerns, such as – is the judgment re B-S Compliant? A : on quick reading probably not. And regarding attempts made to accommodate M & B in placement together. There is also direct criticism of the perfunctory return of M to Italy. That’s as far as I have got as am in lunch break at court.