[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?
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.