I felt that in the interests of completeness I ought to update my two previous posts on the C-section case, which I can now refer to as the case involving Italian mother Alessandra Pacchieri (Post 1 Never let the facts get in the way of a good story, eh?, Post 2 Update on the Essex C-Section Case) . I have been unable to do this before initially because I was awaiting publication of the judgment confirming that what was and was not subject to a reporting restriction orddue to pressure of work and other commitments.
So, The Mail published an article on 4 December naming the Mother as Alessandra Pacchieri. At the time there was no official verification of the suggestion that the court had permitted this, although it seemed likely to be authentic since a specific judge was named as having made an order (Charles J). At the time, out of an abundance of caution, I therefore didn’t link to the article, until matters were clear. Now, at some days distance, I don’t really have the stomach to take apart this piece of emotive journalism other than to say that whilst I don’t want to underplay the real and deep emotional significance of it not just for Ms Pacchieri but for readers, I really deprecate the hysterical tone – however this is apparently a view not shared by the readers of that publication. So I will limit my remarks on it to a couple of specifics:
I have not seen any evidence to support the assertion that “Meanwhile, England’s most senior family judge, Sir James Munby, is demanding to know why the child, now 15 months old, was not returned to Alessandra and has promised to oversee her case from now on.” I have seen evidence suggesting Munby has (unsurprisingly) reserved all applications in the case to himself, as the most senior judge in the Family Courts and one with an interest in transparency and expertise in dealing with applications regarding reporting restrictions, and as the office holder responsible for ensuring that public confidence in the family judiciary is upheld. I think it unlikely that any judge, let alone the President, would have demanded any such thing whilst applications are outstanding. A responsible judge would ensure that all the evidence is gathered so that he can properly consider IF the removal was justified BEFORE making any pronouncement that might suggest prejudice. However, we shall see. I’m not saying it’s wrong, but my eyebrow is raised. No doubt when this case concludes we will see a judgment with Munby’s name on it. It is worth noting also that as far as we can tell from publicly available information there is NO APPEAL of the removal decision NOR of the care and placement orders. Munby has reserved applications (not appeals) to himself. There may be an application for permission to oppose adoption. There may be an application to revoke the placement order. But it is highly likely that any application NOW outstanding relates to the position now, and is based upon a change of circumstances rather than an appeal, which would be contending that the original decision was wrong at the time it was made. Time for that has passed (although an out of time appeal is theoretically possible).
The account given by Ms Pacchieri in the Mail article differs materially from the accounts we have in judgments – and indeed I think from the account given by her Italian lawyer. Which account is more accurate we don’t know, but there are variances. I don’t think it helps to enumerate those – the point is that the details as available to the public remain murky and confused.
On 10 December, after a number of legal bloggers (myself included) made enquiries of the Judicial Press Office and their twitter account, the judgment of Charles J in the RRO application was published (you can view that and all the other judgments published here). That order prohibits the naming of the child or publication of information that might lead to the identification of her but does not prohibit the naming of the child. Suesspicious Minds blog has explained the order more fully here. Be warned. It applies to YOU.
Further, at the weekend Christopher Booker published a second article on the Telegraph website in which he makes a fullsome apology.
Yeah, only kidding. He doesn’t. He demands that a judge “must unravel saga of baby snatched from womb“. Again we see an assertion that social workers will be asked by Munby to “explain their actions“. On what basis? He is not (so far as we know) rehearing the original interim or final care order or placement order. It is possible that some application outstanding seeks to go behind the original order, but it is far more likely that any application is focused firmly on a change of circumstances since that point. It is of course difficult to say that the assertion that Munby is asking for social workers to explain themselves is wrong, but it is entirely appropriate to observe there is nothing in the public domain that suggests it is right. And we know that not everything that Booker has asserted has turned out ultimately to be quite accurate. (Nobody is always right and only some recognise their own fallibility).
But Booker is right that there remains much to be unravelled. There is still a lot we don’t know and in due course I hope that we will find out. I hope in particular we get the judgment that tells us how the interim care order came to be made that led to the baby’s removal. I am sure we will get it, just not sure when.
There is also a separate strand of this story that runs alongside the care and Court of Protection cases – and that is the international question. Firstly, the question of consular notification and involvement at the point of detention and removal which, if press reports are correct, should have happened and did not (I am really interested in this point but just haven’t had the time to go there yet and my own cases must come first). And secondly, the question of the involvement of the Italian courts, the jurisdictional issues and the extent to which the Italian courts accepted the English jurisdiction and were kept appraised. Those issues I think have some way to run, and I think they will become hugely politicised. I think it is unlikely that they will alter the outcome for Ms Pacchieri or her baby, but those issues are nonetheless important issues and in particular the question of consular involvement is one which may raise important practice points in future cases.
And as for the ultimate outcome of this saga – will Ms Pacchieri get her baby back? Well, that remains very much unknown and it is as much as we can do to observe that at this late stage of the adoption process Ms Pacchieri will have a very steep hill to climb. And in the background is an adopter or adoptive couple who have given at least a year of their life to being assessed, trained and matched to this little girl, and who have cared for her as their own for at least the last ten months. They too will be going through immense turmoil at the moment.