Update on the Essex C-Section case

[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) [2013] 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?

Well, firstly we have two of the three critical judgments. We have the judgment authorising the c-section, and the judgment making the final care and placement orders many months later. We do not have the decision of the District Judge who made what we now know to have been an interim care order on (probably) the day of delivery. So there are still gaps.

Secondly, proceedings are still ongoing (confirmed by the Judiciary website). This significance of this is twofold : there is a possibility that this Mother will yet be reunited with her child, although in very broad terms that is likely to be a tough goal to achieve. And reporting restrictions continue to apply. Although an application for a reporting restrictions ORDER was declined today, s97(2) of the Children Act 1989 continues to make it a criminal offence to publish any information which is intended to or likely to identify the child or her address. Furthermore s12 Administration of Justice Act 1960 makes it a contempt of court to publish “information relating to” the proceedings concerning the child, and this is echoed in the relevant rules of court. S12 AJA 1960 continues to apply even after proceedings have finished. There is a lot of caselaw about what “information relating to the proceedings” means – but in broad terms it encompasses (amongst other things) what is said in court in evidence by a witness or by lawyers. It includes the contents of documents in the case. Obviously it does not include material that the court has authorised for publication, such as that included in a published judgment.

Readers who do not work in the field of child care law may be confused as to what proceedings are ongoing, when we have a final judgment making care and placement orders. So here is a thumbnail sketch : a care order authorises a Local Authority to keep a child in its care and to select an appropriate placement for the child. A placement order authorises the Local Authority to place a child with prospective adopters. It is not an adoption order. Probably, although we do not know, there is an outstanding application for an adoption order made by a prospective adopter(s). It might be the case that the Mother is seeking leave to oppose the making of the adoption order and to do this she will need to show a change of circumstances. There has been a lot of recent case law from the Court of Appeal about that, which it is not the purpose of this post to summarise, but suffice it to say that it seems now that a parent seeking leave to oppose the making of an adoption order does not have to overcome quite such a high hurdle as was previously thought, although it is still pretty tough. If the Mother does not get leave she cannot oppose the making of the order. I speculate that this is likely to be what is happening within the proceedings because we are told by the Italian lawyer that the Mother’s contact was stopped after some months of monthly contact, and it is common for contact with birth parents to be drawn to a close once an adoptive placement has been identified, in order to enable the child to invest in their new placement. I may be wrong about this, but I think it is helpful to readers who are perplexed by what is happening to try and place the known information within the legal framework. Other possibilities are that there is a late appeal or that there is an application to revoke the placement order probably on the basis of a change of circumstances. Alternatively there may be some novel application I haven’t thought of.

It is of course now some ten months since the final care and placement orders. Mother’s circumstances may be much improved and demonstrably more stable – but we only have the word of her camp as evidence for this. The judge dealing with the case will no doubt have better information than is in the public domain. Given the huge amount of public interest in the case, it seems likely that in due course we will see a judgment published that tells us what the final conclusion of the proceedings is, albeit that it will continue to be anonymised.

But for now, let’s look at each piece of new information in turn.

Firstly, the Mostyn J judgment authorising the c-section.

It is important to observe this was an extempore judgment made at an urgently convened emergency hearing. It is not a carefully crafted or lengthy reserved judgment. It could not have been. From the judgment it is clear that the Local Authority were involved (as one would expect where there is an acutely ill and heavily pregnant vulnerable woman in their area who may require support or intervention), but they were neither present nor represented in the Court of Protection hearing, which was convened at short notice. The Mother was represented through the Official Solicitor and he had sent Queen’s Counsel to act on his behalf for the Mother. The Official Solicitor did not oppose the application and agreed it was in his the Mother’s best interests.

The mother was 39 weeks pregnant (not 34 weeks as had been suggested by her Italian lawyer on 5 Live), and thus was at “term”. She had undergone two previous c-sections and was at risk of uterine rupture if she delivered vaginally. Plainly, at 39 weeks labour could commence spontaneously at any moment. It is plain that there was a very serious risk, but it is unclear if it was necessarily life threatening (although I imagine it had potential to be so) and it was said to be a 1% chance of rupture.

Somewhat unusually, the Judge “offered advice to the local authority … that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there should be an application for an interim care order.” This is in fact what they did, rather than going down the route of a “PPO” or “EPO”. Again, for non lawyers : Police Powers of Protection are often inaccurately referred to as a PPO (Police Protection order) and enables the police in an emergency to take a child into safe custody for up to 72 hours without any application to the court – the place of safety is in practice usually the care of the Local Authority. An Emergency Protection order is an order lasting for a maximum of 8 days which permits a Local Authority to take a child into safe custody and it can be sought by a Local Authority applying to a court in an emergency only. An interim care order is a temporary order again allowing the Local Authority to take a child into care, and is the normal route for the removal of a child except in cases of emergency.

Mostyn J was quite right to advise the Local Authority as he did. There is authority from the higher courts that it is quite wrong for the Local Authority to plan to use a “PPO” by asking the police to intervene – if an emergency scenario is anticipated it should be the subject of an application, and police powers should only be used where an emergency arises unexpectedly. The judge was clearly alive to this, as the order which is attached at the end of the judgment also makes reference to the fact that what was suggested appeared potentially to fall outside the powers in the Children Act.

We do not know what happened at the ICO hearing save that the ICO was granted and the child placed in foster care. It seems likely that the Mother was represented by the Official Solicitor through counsel, and equally unlikely that she will have been well enough (or permitted) to attend court to give evidence. We know she had been sedated (probably under general anaesthetic?) and in any event remained under section. From the Mostyn J judgment it appears that the medics had raised the possiblity of placement together in a unit, at least temporarily. Self evidently that was discounted as a viable option but it is not possible at present to say why.

As for the decision itself, it was certainly lawful – in the sense that the judge dealt correctly with the application in two stages. Firstly he considered whether the Mother had capacity to make her own decision in relation to the litigation or the c-section. On the basis of the “clear” medical evidence he concluded she did not. He did not assume she lacked capacity simply because she was under section. Had he concluded she had capacity that would have been the end of it. It would have been up to her to make whatever foolish or dangerous decision about delivery she wished. Having established she lacked capacity at that point in time (which I have seen nobody seriously contest) the Judge’s job was to decide what was in her best interests. He considered the impact upon the mother’s mental health of doing nothing and of injury resulting to her baby.

Although many will no doubt say that the best interests decision made was the wrong one, given the gravity of it, and the level of risk, that is ultimately what we task High Court Judges with doing – taking impossible decisions. For my part the facts do not appear to be anything like as grave and urgent as I had imagined they might be, although plainly there was significant risk, but I would not like to put myself in Mostyn J’s shoes without seeing and hearing the evidence he heard. There are also perfectly legitimate arguments to be had about whether judges should ever be able to impose this sort of surgery on a woman and about the exclusion of the subject of Court of Protection proceedings from the proceedings (except indirectly through the Official Solicitor).

[UPDATE midnight 4 Dec: Excellent second post with which I entirely agree on the CoP judgment on the Mental Health and Capacity Law website]

The interview with the Italian solicitor confirms a number of things, although it must be said it appears in a number of respects to be unreliable (most significantly the suggestion that Mother was delivered at 34 weeks) :

  • The Italian solicitor has had no direct involvement in the proceedings in the UK and on his own admission does not really know what is going on in them. He does not know if adopters have been found.
  • Contact continued after removal initially weekly and whilst mother was in Italy monthly.
  • The maternal grandmother is not putting herself forward to care for the baby on grounds of age and appears to be suggesting the other two children should move to the USA with the baby to live with the paternal aunt of one of the children.
  • The Mother was not taking her medication at the time of her detention. He did not really answer the question regarding how unwell she actually was when detained. His description of the severity of her condition varied.
  • The Mother had, he said, proposed resuming care of the child immediately and in the alternative would wait 6 or 12 months whilst she proved she was sufficiently well. This is not the position of the Mother as recorded in the judgment at final care hearing.
  • Italian social workers had given custody of the two other children to the Maternal Grandmother because she was unable to care for them – although it was also insinuated that she had significant periods of caring for them.
  • The Mother accepted she had some problems and needs the help of her family (although in fairness due to the fact that English was not his first language I wonder if he had his tenses muddled and was talking about problems in the past whilst using the present tense).

Finally, the judgment making final care and placement orders:

  • It appears from that judgment that the Mother’s case as understood by the judge was that she did not put herself forward to care for the child immediately, but at some point in the future. That is to say that the Mother’s proposal involved the child remaining in the limbo of foster care for a period of time prior to any rehabilitation to her care, of course with the possibility that she might relapse in the meantime.
  • The Mother’s mental health difficulties were comparatively long standing and when not compliant with her medication led to her being profoundly unwell such that she could not care for her other children.
  • The syntax of paragraph 8 does not quite make sense but I think that the Judge is saying that although the medics were at an early stage suggesting that separation of Mother and baby was not immediately necessary as they could be placed together in hospital, the judge had concerns about that, sufficient concerns to authorise the instruction of an expert (presumably a psychiatrist) early on in the proceedings.
  • There has been lively debate today amongst my colleagues about whether the judgment contains sufficient analysis of the options to satisfy the stringent test for the making of a placement order, now understood to be an exceptional outcome only taken as a matter of last resort where nothing else will do (see Re B and Re B-S). In truth, although I have my doubts, I have not had sufficient time to analyse this with the detail I would like, and there was definitely no consensus amongst those I canvassed on the point.
  • Suesspicious Minds covers this judgment in more detail than I have steam for.

It has been said today that it is only thanks to the Telegraph article and subsequent press coverage that we now have the two judgments that are in the public domain. As a matter of causality that is so. But it does not justify poor reporting. Primarily my interest in writing this and the previous blog post was the issue of poor reporting and the consequently ill-informed public discussion, and it is no excuse for a major media outlet to rely upon a single source of information where there is a high likelihood of containing inaccuracies or omissions (there are a number of reasons why this may be so ranging from confusion to poor recall to heightened emotion to deliberate misinformation) without seeking out corroboration. For the avoidance of doubt speaking to a third party (such as John Hemming) whose own source is your own source is not corroboration.

The press know full well that, having established that they wished to run a story of genuine public interested, they could have sought a copy of the relevant judgments, to have released to them certain documents, or made an application for permission to report certain information. They could have approached the Local Authority for comment or to check facts. They may have approached the Local Authority, but again it is no good to say they were fobbed off with the standard “we cannot comment on individual cases” – if the shutters went down they should have asked the court.

It is spurious to suggest that this sort of headline led reporting is some kind of public service. It’s not. It may well be newsworthy. It may well be a case of public interest. It may well be a case that should have been transparently reported from the outset. (for the avoidance of doubt I agreed with all those propositions). But this is not the way to go about it.

One final point. Essex today have rather made themselves hostage to fortune. Why they made an application to the President of the Family Division without having complied with the basic requirement to give notice to the Press I don’t know. Why they sought an injunction prohibiting the publication of information that it was already a criminal offence or a contempt of court to publish I don’t know. Presumably they suspected that something was about to be published that might identify the child, such as a photograph. What they have achieved is the impression that they are part of the “culture of secrecy” that is fearful of the oxygen of publicity. Bit of an own goal really.

Bring on more transparency.

UPDATE 15 Apr 14 : Final Chapter here on Suesspicious Minds blog

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38 thoughts on “Update on the Essex C-Section case

  1. […] UPDATE Weds eve 4 Dec : I’ve now written an updating post on this topic here. […]

  2. Hat Tipping is in order here and mucho respect and thanks for your conscientious reporting of the whole situation over the past 5 days

  3. […] Update on the Essex c-section case – By Pink Tape blog (family law barrister Lucy Reed) […]

  4. Still, the big overarching question remains: how is it possible that the UK has jurisdiction over the offspring of a family with no ties to the country? I hope Italian politicians intervene.

    Also, I don’t see why the father is dismissed as a potential carer. It appears that part of the reason is his unclear immigration status, but the idea that someone can be denied the joys of parenthood on this basis (even if this is not the sole reason) does not sit well with me. Also wondering why he did not take part in the proceedings, say, via videolink. He was offered to but refused? Or was not offered at all?

  5. I prefer the mother’s own words to the establishment cover-up of a scenario more befitting a Hammer horror film than a worthy exposition of UK family justice.

    [edited for legal reasons]

    Lawyers and doctors will always look out for themselves. In matters of child protection, UK doctors daily breach their hippocratic oath.

  6. I made a lengthy post answering some of your points in the previous thread and I don’t want to get bogged down in it. It’s great that family lawyers are able to discuss some of the issues relating to family courts – it’s just your jaundiced view of journalism that grates, when it seems not be based on an understanding of the constraints on journalists.

    “The press know full well that, having established that they wished to run a story of genuine public interest, they could have sought a copy of the relevant judgments, to have released to them certain documents, or made an application for permission to report certain information. They could have approached the Local Authority for comment or to check facts. They may have approached the Local Authority, but again it is no good to say they were fobbed off with the standard “we cannot comment on individual cases” – if the shutters went down they should have asked the court.”

    I think you’re seeing this through a lawyerly lens where it is a simple matter to ask a court for information. It’s not that simple for journalists. Assuming that the Sunday Telegraph knew which court to approach, which is not a given in all cases, the process of getting a judgment or a transcript is opaque and usually, in my experience, ends in failure unless it is on Bailii. In the past I’ve approached court clerks, the administration office and the parties in the cases and been treated as though I was asking for the Lord Chief Justice’s PIN code. On one rare successful occasion I applied for a document confirming someone had been convicted of an offence. Unfortunately this was a full month after the application, by which time it was irrelevant. Please don’t underestimate the difficulty that outsiders have in dealing with the court system, especially when there is time pressure.

    I would also take issue with the principle that journalists should only ever publish stories when they are in possession of all the facts, particularly when it is those in authority who are blocking enquiries. This would allow public bodies to effectively veto publication of embarrassing stories where there is no realistic possibility of getting the other side.

    • Bobby I do have a pretty jaundiced view of some journalism. And yes, I am seeing it through lawyerly eyes because there is LAW that constrains what can and cannot be published. One can criticise the law but it is still the law. I do think its fair to assume that it is within the capability of the Telegraph to deal with an application for permission to the court. I know it can be cumbersome getting actual evidence and both sides of a story but hey. That’s journalism. I thought.
      How can you say “I would also take issue with the principle that journalists should only ever publish stories when they are in possession of all the facts”? And moreover where is the evidence that anyone blocked enquiries? All the information available at present suggests it wasn’t sought (certainly in relation to the c-section judgment) and Essex would simply have been unable without court authority to help. Local Authorities don’t have a veto – the court has a right of veto on publication which it is increasingly reluctant to exercise. If you don’t ask you don’t get.

  7. I say that journalists should not be expected to wait for all the facts because sometimes the entirety of the facts never arrives. Judges and juries often make decisions without all the facts being available – look at Mostyn’s judgment in this case for one example. In the on-going phone-hacking case it has been alleged that vast amounts of evidence was destroyed – so all the facts can never be known. Journalists shouldn’t be held to a higher standard of evidence than the criminal law.

    I’ve already dealt extensively with the point that Essex CC stonewalled enquiries. You make an assumption about what Essex CC was able to say and do, but you may not be right – it took very little time to put out a statement after publication and Essex CC has not said it was prevented by law from commenting.

    By the way, if newspapers have broken the law in publishing stories about this case then surely the Attorney-General will prosecute them. He’s not been shy of doing so before.

    • Well clearly Bobby one has to do the best one can and make a judgment call. But I think you and I have different views about the extent to which what we know suggests or demonstrates active obstruction from Essex or something different.

  8. Hi Lucy
    Thanks so much for all the information on this situation! This case has been perfectly timed for me as I am writing one of my final assignments on legal issues relating to midwifery, and with your permission would like to refer to your blog (appropriately referenced of course!)
    Hope all good with you
    Cath

    • Hi Cath,
      No problem. Hope you are getting on well with the midwifery. You left at the right time! ;-)
      Lucy

      • By the way Cath, the birthrights blogpost and the mental health and capacity law blog posts (2 of them) are probably worth looking at on the medical / consent / patient involvement issues.

  9. Why in the transcripts was it noted that she was not to be informed of the c-section? That is monstrous. She was already ill, terrified,(more then likely) traumatized by the situation and they make that move? To further traumatize her? Its horrendous. I doubt the British government would be so forgiving if it was a British citizen going through this in another country.

    • I think that the judge permitted her not to be told rather than mandating it (don’t have judgment in front of me at moment). Not that that necessarily alters the point you make, but its important to be accurate.

  10. Booker dissects cases forensically and gets details righ far more often than the lawyers do. He will be pointing out the horrors in Judge Mostyns judgement this Sunday with his usual precision and accuracy.No doubt he will then be met by a barrage of outrage from lawyers/social workers protesting that he is innaccurate,innappropriate,talking and writing nonsense,and doing great damage to the legal profession,the family courts,and social services.
    None will point out anything of any material consequence that is false or deceptive.
    I will not preempt the Booker column but cannot resist on my own account pointing out that the desperate attempts to exonerate Essex council by blaming the health trust do not stand up .
    Essex social workers were in the birth room when the mother woke up,and directly contrary to the hospital doctors recommendations that she stay in a mother and baby unit Essex obtained the interim care order and Essex obtained the order for adoption placement from a compliant family judge when they could and should have agreed to a quiet return of mother and baby to their native Italy to be dealt with by the more humane social workers of Italy .
    So many foreign mothers have lost babies to forced adoption when on short visits to the UK that I now feel compelled to warn visitors to the UK from abroad to exercise extreme caution in future especially if they are pregnant or accompanied by young children!

  11. The heading says “never let the facts get in the way of a good story”.
    Well what are the facts?
    A pregnant Italian lady visits the UK but her baby is taken by Essex social services for adoption by strangers,so she is sent back to Italy alone and grieving for the child she lost.
    Nothing can excuse Essex social services who prevented her from returning home to Italy with her baby so that Italian social services and her extended family could together deal with any health issues etc.
    Pregant foreign visitors beware ;you could be next !

    • Well Ian, apart from the fact that you have manipulated the sequence of events to your own ends…But of course it is an any event inaccurate through omission.

  12. Well spoken, Ian. I’m in il Bel Paese at the moment and with the facts now well disseminated and filtered down, this case has done wonders for out national reputation for honesty, fairness, compassion, justice – you name it.

  13. In the transcripts, the judge asked if she will be informed. They state she is not going to be. He concedes to that. That is horrendous. Going through that ordeal is traumatizing enough. But to not be told of the c-section…I can not fathom how utterly traumatizing that is. THAT point, that they withheld it, It vile. It shouldn’t of happened.

  14. With his usual precision and accuracy! That’s beautiful. Thank you for making me laugh so hard, Ian.

  15. Lucy

    I should be grateful if you could answer a question for me, is it considered good practice for a barrister who is representing a patient at a CoP hearing not to have met, spoken or corresponded with that patient prior to appearing?

    This is what Marjorie Wallace of SANE has said to Camilla Cavendish at The Sunday Times:

    “Wallace believes the decision to remove the baby permanently was “unacceptable. Normally you’d expect them to have waited for her [Pacchieri] to resume her medication, regained insight and capacity, before any decision was made. What I think was unforgivable was relying on evidence from unnamed and unaccountable experts, people who didn’t know her, did not know what she was like before she was acutely ill and who, as far as we know, didn’t have access to her notes.”

    Bipolar disorder, Wallace says, is a fluctuating condition that affects one in 100 people: “No two psychiatrists will be able to predict how soon someone with bipolar might recover or how severe a lapse will be.”

    She adds: “There are many thousands of mothers with the condition who may have found pregnancy and childbirth challenging and are at more risk of postnatal depression. But they are managing the condition and their children.””

    There also needs to be an explanation of why the procedures set out in Brussels II were not followed.

    It is also clear from the blogs that you have linked to that other professionals, both legal and medical, have serious concerns about the way in which the hearings and medical procedures in this case were carried out.

    • Hi Gladiatrix,
      Will do my best.
      I don’t do much CoP work but there are cases where I expect a representative of an incapacitated person would not meet them, most likely in circumstances where the Official Solicitor acts on behalf of that person. Ordinarily I would expect the Official Solicitor to have taken into account the wishes and feelings (insofar as they can be established) when forming a view about best interests and what position to take on behalf of the incapacitated person – but the OS may relay those wishes and instructions to counsel to be put forward to the court. There will be cases where it is not possible to take wishes and feelings, either because they cannot be obtained or understood or because urgency does not permit.
      I most often act for an incapacitated person in care rather than court of protection proceedings, and there the parent will be a party and usually present to tell me what they think, even if I take my actual instructions from the OS.
      The rest of your question isn’t about the Court of Protection, but about care proceedings. I don’t know the details of the Mother’s conditions, her prognosis, or medication – the only relevant judgment we have is the final care judgment and it doesn’t help much. But in broad terms it is right that the label “bipolar” doesn’t really help us predict much, except that we can predict it is unpredictable. There are plainly women who manage parenting whilst coping with bipolar, either all of the time or most of the time or with support. Generally speaking the longer one goes without a relapse the more the risk of relapse reduces, but risk in an individual case depends on many factors like compliance with medication, substance use, other life circumstances etc. I don’t think its possible to say much about the risk of relapse for this mother at the point at which the court had to make a decision, other than the medical evidence that the court had (which we aren’t given in detail) evidently led the judge to the conclusion that the risk of relapse was too high to risk delaying a permanent outcome in the hope that rehabilitation to mum could be achieved.
      It may be that since that hearing in February Mum has remained well and therefore has a more sustained period under her belt without relapse. The risks as perceived now may be lower than as at February 2013, so its important not to view the Feb decision through today’s lens. It may be that the application made by the Mother (and we don’t actually know what it is) will require the court to look at the risks and factors now – and the answer might be different. However, as the risk of relapse reduces, so does the risk associated with failure – because if the child can’t ultimately be rehabilitated and she has to be found a permanent home elsewhere the difficulties arising for that may be more acute than they would be if adoption proceeds now. As ever, it is a balancing act – albeit one that the Supreme Court has reminded us is weighted in favour of biological parents wherever possible.
      Don’t know about Brussells II I’m afraid. Haven’t given it much consideration due to other commitments.
      I agree that there are professionals from a range of disciplines who have expressed concern – the focus of the concern appears to me to be on the Mostyn decision and the medics involvement in it – and potentially the interim care order decision, which we can’t really assess because we don’t have it. I hope that is released soon.

  16. Gladiatrix,

    When you talk about BIIR, how exactly did you have in mind?

    There are a lot of people saying the court with jurisdiction is Italy. Section 2 of BIIR suggests (to me, at least) that this isn’t true as the child would have no habitual residence at that stage.

    It would, however, be interesting to know why the court didn’t request a transfer of its own motion under Art 15 and why nobody (be that party or the state of Italy) made a request for a transfer.

    I too am a little confused as to why the British taxpayer had to fund the whole foul jamboree. Might have been rather easier & cheaper to send it back to Italy. I suspect Essex CC are beginning to rather regret that choice.

  17. […] terms of reference of this blog. There is thorough commentary raising a range of different concerns here, here and […]

  18. @familoo and @sophia – yes, it says she is not to be informed. No, it does not say she is not to be informed about the c-section order. They were discussing the interim care order that was going to be made upon birth. Daily Mail misreported that, no doubt deliberately. I nearly fell for it myself. Careful reading of the transcript will clear that up.

    • I don’t think that is quite a correct reading Matt F. I’ve just looked at the transcript again. Mostyn J is clearly attempting to ensure that the making of the c-section order does not lead automatically to removal of the child, by his remarks directed at the LA to apply for an ICO rather than seek to nudge the police to PPO. A PPO would of course have required no court sanction. Having obtained some reassurance that his clients baby will not be removed until due process has been gone through (ICO application) counsel for M agrees to the CoP order on her behalf. The judge then moves on to discuss that the order (including the c-section and the recital re ICO) should not be shown to M prior to the procedure. That would have no bearing upon her being made aware of the ICO application once made – which as a matter of law would have to be AFTER the c-section. We don’t know if that did or did not happen, but it usually would.

  19. Okay. If you are telling me that in your experience it would not be unusual to keep a caesarian order secret from the patient, I will defer to that. However, I note that Lock says that she should not be informed until after the operation and that “If she disagrees with it she can apply afterwards to discharge it.” That would not appear to make much sense if we were discussing the c-section order as events would have overtaken.

    • I don’t think there is anything usual about an enforced c-section order. But I can see that there are arguments (with which it is perfectly legitimate to disagree) that could be made about the need to ensure the patients (and foetus’) wellbeing and safety by avoiding distressing her too much. I agree its difficult to make sense of that passage – I think the reference to it being discharged is a reference to the capacity determination. Clearly it can’t be the c-section as that would already have happened. But I think if you read the annotation to the transcript by Mostyn when he released it and the relevant passages it is clear that he was attempting to ensure that a court process applied to the separate question of removal and that the court should be in a position to make a decision on interim care orders BEFORE separation, not once it was a fait accompli. In my experience it is difficult sometimes with transcripts to get exactly the sense of what is being said, particularly where they are rushed urgent hearings where lots of reference is being made to documents that the reader does not later have to hand. This is the best sense I can make of it. I agree that the reference to disapproval of the idea of a PPO and preference for the (legally correct) course of an ICO application *in the ordeR* was not to be disclosed, but that would not have necessarily have led to her being kept in the dark about the ICO application. I think I am repeating myself. It is late…I am off to bed.

  20. Ah, the capacity assessment. I hadn’t thought of that. Thanks, that does I think clear it up a bit. I have to say though that I think keeping that decision from the patient is very invasive. The patient may be found to lack capacity to make decisions, but she can still make her wishes known and try to get someone to intervene on her behalf. Taking this approach completely leaves the patient out of the process and alienates her from the care that is supposed to be in her best interest. I find it horribly paternalistic and difficult to swallow. Why should a person who lacks capacity be denied the freedom to make the same irrational choices that are available to you and me?

  21. As someone who had to have a mandatory c-section after the first one(for the same reasons, fear of uterine abruption) I can understand the need for her c-section. I can not condone what they did by trying to do it without her knowledge. I can only imagine the fear, the terror, the trauma it has done. As to why the italian courts should handle it, the baby was born to an italian citizen. There for she is italian NOT british. Her place of birth is nothing to do with her nationality. I know this first hand as my children(born in the states) are spanish Due to my nationality, ,my mothers nationality etc. The italian authorities should of been immediately informed. There should of been contact with the consulate IMMEDIATELY. Not months later. There has been mistakes made through out this. More then likely though, the council didnt even know about those steps. My own dealings with a local council proved that. They had NO idea about immigration laws or how they were applied to dependants. Just as a side note. They have continually stated her mental state. I ask you, any of you, what would your mental state be if someone had taken, threatened to take your child? Or your unborn child? She was terrified. Were they expecting her to sit placidly? to be calm and collected while she was in a country not her own, her rights stripped and fearing they would take her baby? Of COURSE she was going to be “out of her mind”. I know full well I would of been. I am honest enough to say that.

  22. Don’t get your points.

  23. Why no information on the interim adoption order?
    Not more embarrassment, surely?

    • Paul,
      There is no such thing as an interim adoption order, unless you are referring to the placement order, which is an order permitting the local authority to place the child for adoption with prospective adopters. A child must be placed with adopters for at least ten weeks before an adoption application can be made. I’ve linked to the care and placement order judgment of the Circuit Judge in Chelmsford and the recently released judgment of Charles J on the Reporting Restriction Order application tells us that the child has been placed under the placement order. One can extrapolate from that that there is likely to be an adoption application already made or about to be made. I’m not sure what information you think is missing. We have the judgment on the placement order – the one that is missing is the interim care order. I’d like to see that, but as far as I’m aware it still hasn’t been published. As noted on the Suesspicious Minds blog that could be for a number of non-sinister reasons, such as the judge being on holiday so the transcript can’t be finalised, problems with finding tapes etc. Since all the other judgments have been released I think its likely we’ll get it eventually, but we’ll have to wait and see.

  24. I find this whole case very mysterious. The expertise of the obstetricians who made the application would not extend to being able to comment upon appropriate placement placement for the child. That expertise might (though not necessarily) be part of the skills of a perinatal psychiatrist, or those of a child psychiatrist with appropriate expertise. Very few Social Workers are trained to assess cases like this, but no mention of an expert witness report about child placement has been made. I would be extremely worried if the judge interpreted the new rules about only ordering an expert witness report if it was “necessary” as precluding an appropriate report in this case.

    • David Foreman,
      My reading of it is that some of the mental health team were uncomfortable at the time the application to the CoP was made about the net result of the order being a hasty removal of the baby when they wanted consideration to be given to holding mother and baby in a unit together. There appears to have been some difference of opinion about how manageable the risks were as between medics and social workers, but in truth it isn’t that clear from the judgments we have. It appears from the fact that an ICO was made that the court was persuaded it needed to protect the baby by means of an order with a care plan for removal, but we don’t know on what basis. It might have been that the mental health team changed their mind – for example because mothers’ condition worsened, or it might have been that the judge disagreed with them. It’s unfortunate we don’t have the ICO judgment because we can only guess about the reasons for the decision to remove at present. There appear to have been appropriate multi agency pre-birth meetings as entirely normal and appropriate in this sort of scenario, and no doubt an exchange of views from different professional disciplines in the course of that. The social workers and the court would no doubt have had regard to the options available for placement together and the medical views on the assessment of risk. On an interim basis I doubt it would have been possible to obtain expert evidence, so the court is likely to have had to do the best it could on the basis of any available treating opinion, although it is clear by the time of the final hearing there was independent expert evidence regarding mother’s mental health. I don’t think the new “necessary” test would have impacted on the situation in the days immediately following the birth, and evidently it did not prevent an instruction of an expert at the time. Saying that it was probably an old rules case looking at the dates.

  25. Yes, I understand, thank you for your explanation. The interim care order was what I meant as of interest as the doctors had intimated that mother and baby should stay together and of course we know this didn’t happen. As this application would have been made by social services I anticipate a raft of phony reasons to justify why the doctors’ recommendation was ignored. The conspiracy theorist in me naturally leans to the view that neither social services nor the courts want this information released to public scrutiny not least because there are likely to be further howlers exposed and yet more cannon fodder for the journalists.

  26. […] that excellent account of the case (do note that there are two sequels to the post I am linking to here and […]

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