Now its a trilogy…

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.

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

Share this blogpost

42 thoughts on “Now its a trilogy…

  1. The only possibility is surely that the birth mother is applying for leave to oppose an adoption order. If child is placed, too late to oppose placement order. If the President is going to be adjudicating on that, let’s hope he sets record straight!

  2. Irrespective of whether or not the baby ultimately ends up with Alessandra Pacchieri, adoption proceeding, if any, should take place before a court in the country of the baby’s citizenship and not in Britain. Anything less is legalised broad daylight babysnatching and a gross abuse of human rights.

    The baby is not a British citizen and is wrongly being kept away from her native culture and land through intensive thoughtless actions by do-gooders.

  3. I think that what ought to come out of it is a Re X type case (which clarified the very very stringent demands on making an Emergency Protection Order) applicable to the Court of Protection. Perhaps even a practice direction.

    It is unclear to me why the authorities presented to the judge in the Court of Protection application didn’t include the St George’s case. Being charitable, if the application was made on very short notice and had to be heard fast, it is likely that the Judge had no time to do their own research, likewise the silk representing the mother through the Official Solicitor. Perhaps even there was very little time for the applicant, and the research turned up the authority that they DID present to the Court.

    One doesn’t have to suspect bad faith or conspiracy, it can be human error. However, it is clear that a judgment given in the context of the St George’s case would have had to be more probing and searching of what the applicant had attempted before the application.

    And we must acknowledge that where such applications are made in a scramble and against the clock, mistakes can be made. Let’s help the Judge by having a clear authority / practice direction on the obligations of the applicant to present the case in a way that makes it clear how high the test is.

    [The case might well have ended up with the same decision had St Georges been followed, but we will know never know. These decisions aren't as rare as one might believe - I know of two others in even the short time since Booker broke the story, so it is not a freakish set of circumstances that we need never worry about again]

  4. Worse has happened in life, far worse and no one has died. There is no fundamental problem that I can see in reuniting a mother with baby if indeed that was the way it was meant to be. A few bruised egos along the way, a faulty, secret and unfair medical, legal and social care process laid bare for public examination, what is all that in the general scheme of things other than a force for good? That Christopher Booker happens to act as an agent for change can also be applauded. Do you always get every little detail right in your submissions?

  5. Julie, I think that’s right.
    Suesspiciousminds – can you link to the St George’s case?

  6. Paul,
    No I do not always get everything right. In blogging, in submissions or as a parent. I agree this is a case that was legitimately a topic for reporting and public debate, I just think that there is a responsibility on the press to get the facts right first and not write from the headlines down.

  7. Did you see that when Judicial Office uploaded the reporting restriction order of 4 Dec the first time – they uploaded with the Schedule which named all the parties, including the child?

    Luckily, after I tweeted my confusion to them, they took it down and re-uploaded it without the Schedule.

    It would help to keep the identity of the child out of the media if the court didn’t upload it to the internet in the first place.

    That said, I welcome the increased transparency.

  8. Suesspicious minds, where is the overarching case made that this was a “scramble for time”? Where is the hard, factual evidence, as opposed to QC-inspired waffle and mumbo-jumbo?

    You seem to afford yourself a wide discretion in choice of narrative that you seek to criticise in others who stand accused of much the same.

  9. Lucy, we are in a closed circle of argument here. Those facts were not available in the form of judgments and transcripts. If a “scramble for time” existed it was on the part of blindfolded journalists scrambling for closely-held facts to meet deadlines.

  10. Hi Lucy, well annoyingly I can’t find it on Bailii or anywhere I can provide a free link to (which may explain why it got missed). And also, it is a 1998 case (the case given to Mostyn J was 1997, which also, of course predates the MCA and the St Georges case)

    St George’s Healthcare NHS Trust v S [1998] 3 All ER 673, 698

    If you copy that exactly into google, there’s a PDF to the judgment about 8 links down (just after the Small Places)

    Actually, my own poor efforts to locate a transcript of the case even though I know the name and the reference shows up how easily in a fast scramble to get the application to Court it could be missed.

  11. There is an additional complication, which emerged from discussion on the Small Places blog. I wish that I had thought of it, because it is brilliant.

    The woman in the C-section case was detained under the Mental Health Act. Now, if the C-section process involved a deprivation of liberty (and it is bloody hard to imagine that it didn’t, because she would have been sedated)

    then the discovery of Holman J in “An NHS Trust v Dr A” is problematic.

    In that case (reported in August 2013, this c-section took place in Feb 2013, but to be honest the law was as Holman J states back in Feb, it is just that nobody knew), Holman J realised that the MCA specifically forbids a Court authorising a deprivation of liberty under the MCA where a person is sectioned, and the operation can only be done under the MHA if it relates to the mental health condition. Thus, there is no statutory basis for the Court authorising the procedure. (You see why this is significant)

    In that case, Holman J used the “inherent jurisdiction” to escape the legalistic problem that statute could not authorise the force feeding procedure whilst the man was detained under the MHA. (It is noticeable that article 2 of the HRA came into play here, and Holman J felt that the Court was DRIVEN to use the inherent jurisdiction IF the situation were life-threatening)

    http://suesspiciousminds.com/2013/08/07/deprivation-of-liberty-and-force-feeding/

    Sorry to derail your discussion, but this is clearly something that the Court of Protection / High Court are going to need to get into in due course.

  12. Dear Paul,

    A fair point. What I wanted to avoid was implying bad faith in a very pertinent piece of case law not being provided to the Court when I don’t know how long those involved had to prepare the case. I do have experience, in different sorts of cases, in how long one gets to prepare an application for a surgical intervention declaration, and in that experience it is not a very long time.

    There is of course, a somewhat different time frame involved in the decision to apply for the declaration (at best 5 weeks, since the mother had capacity up until her detention under the Mental Health Act 5 weeks before birth) to the decision to print a story in the newspapers some ten months after the decision was made.

    It is of course, not the fault of journalists that their knowledge of the Court of Protection is so vague that they had no concept that what Booker was reporting as the central facts could not possibly have been true.

    They aren’t lawyers, the Court of Protection is something of a mystery to a lot of lawyers and as many journalists would point out, the inherent secrecy of the Court of Protection does it no favours when it comes to journalists giving it the benefit of the doubt as to whether what is claimed it has done is plausible or unrealistic.

    However, one does not need to be an expert in mental health law to have some scepticism about a claim that a person gets detained under the Mental Health Act for five weeks as a result of a panic attack.

  13. Forced adoption is a wicked crime no matter what the circumstances and forced adoption of the child of a foreign visitor is even worse !

  14. Facts matter in the end ,and however long the lawyers talk about clever legal details the fact remains that the baby is now in the grasp of Essex social services where they hope to feed it to the forced adoption industry, and the bereft foreign mother is bewailing her loss in Italy and wishing she had never come for that short visit the UK ………..

    • Forced adoption, I agree facts matter. As does law. Using words like grasp, rip, bereft, bewailing doesn’t really add to the facts. It is a distraction from them. We are still awaiting some of the facts.

  15. Familoo I would hate to distract you with unecessary adjectives and I promise not to be distracted when YOU describe ,not the mother but the prospective adoptive couple, as going through “immense turmoil”
    Here are the facts without embellishment…..

    A pregnant Italian mother came on a short visit to the UK and whilst there her baby was taken from her by Caesarean against her will .A UK court then decided again despite her protests, that her baby should be adopted by UK strangers so she returned to Italy without her baby and is now asking for her daughter to be returned to her and her family in Italy or given to her extended family in New York.
    I suggest that no illnesses or other circumstances can justify the UK authorities refusing to allow Italian social services and if necessary Italian courts, to handle any issues that arise concerning an Italian Mother and an Italian Baby.

  16. Ian,

    There is a problem with your argument that the correct approach is to ‘allow Italian social services and if necessary Italian courts, to handle any issues that arise concerning an Italian Mother and an Italian Baby’.

    You may feel this is a false dichotomy, but my analysis is that to do this you either need:

    a) interim care order, with an interim care plan that allows the flying of the baby to Italy and handing him/her to the Italian authorities while the Mother remains in a UK hospital until she is well enough to be released or a mental health tribunal requires her release, or

    b) to take no action in respect of the baby, have the NHS drops hands with respect to the mother (in whatever mental condition she was in) and the hope (but without any legal power to ensure) that as soon as she is ready to leave she gets on a plane to Italy with the baby into the waiting arms of the Italian child protection authorities.

    Neither option seems appealing to me—sending a child to Italy by itself doesn’t appeal any more than peremptorily ceasing treatment for the mother for her mental health problems and hoping nothing happens (to her or the child) while she returns to Italy in her own time.

    I’m not uncritical of the way the proceedings have played out, I just don’t really agree with your criticisms. Possibly because they (as usual) are absolutist and appear to be based on the assumption everything that has happened is unjust, malicious and wrong.

  17. Jim ,neither (a) nor (b) are correct solutions.
    Quite simply ,when the mother left the uk for Italy the baby should have gone with her and both should have been met on arrival by Italian social services .No interim care order or placement order was either necessary or even desirable.The doctors recommended that mother and baby should not be separated ,and they were right !Incidentally Essex social services seemingly can’t understand Italian as their assertion that the Italian Courts agree to the baby remaining in uk is totally false ;On the contrary the court in Rome demanded the immediate return of the baby to Italy.

  18. Ian,

    I think your position is unarguable—and confuses an interim care order with interim removal of the child. Consider:

    The Mother returned to Italy on 21 October 2012. (It isn’t explicit but paragraph 9 of the judgment of HHJ Newton suggests she hadn’t been out of hospital long when that happened.)

    Child was born on 24 August 2012.

    Somebody has to be exercising parental responsibility between those dates. It seems (to me) unarguable that PR should vest solely in someone who at that time is deprived of their liberty (and their right to refuse medical treatment) under the Mental Health Act.

    It doesn’t seem possible that the Mother could actually exercise the legal powers of parental responsibility for much of that time, let alone effect any/all of the responsibilities/obligations one has to a newborn. Someone has to exercise them—and ub default of anyone else that someone is the local authority.

    On the contrary the court in Rome demanded the immediate return of the baby to Italy. Well, I didn’t mention that but it is interesting. Can you link your source—my Italian is tolerable.

    • I’m not going to permit anyone to link to any document which might name the children. To do so would be a breach of the RRO.

  19. IMPORTANT POINTS FOLLOWING THE MUNBY JUDGEMENT !

    1:- L.J Munby states that journalists cannot be totally blamed for innacurate reporting if the facts are not made public in the first place.

    2:-Booker was criticised for saying the mother was sectioned following a panic attack because it implied that was the only thing wrong with her .The reporting was accurate the implcations were not ,but were only conclusions drawn by others.

    3:- Munby himself remarked that no appeals had been made against any of the judgements .This implied that the mother was satisfied with them when in fact the delay is because legal aid has still not been made available.This shows that no person reporting accurate facts should be blamed if others draw erroneous implicatons from them.

    4:-Essex Council made a statement on this case which was not only innaccurate but more importantly PROVES BY THEIR SO DOING THAT SOCIAL SERVICES CAN COMMENT ON INDIVIDUAL CASES BUT JUST CHOOSE NOT TO !!

    5:-Essex Council stated that the Italian courts agreed that the child should remain in uk.This is manifestly false as the court in Florence referred the matter to the high court in Rome which concluded that the child should be returned to Italy.

    6:- The statement by EssexCouncil and also the Mostyn judgement both ignored the fact that the hospital doctors and their psychiatrist recommended that mother and baby should not be separated.This gave the false impression that all concerned were agreed on the interim care order and subsequent placement for adoption.

    7:-The Munby judgement merely forbade any one from publishing the names of the mother and child (though permitting her maiden name) or information such as addresses that could lead to their identification.No newspapers had expressed any intentions of doing this in any case.

    8:-L.J.Munby thoroughly endorses the campaigners for reforms of the family courts and the court of protection in para 45 of his judgement as follows:-
    . “This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges”

  20. JIM, I may seem dim ,but I cannot understand from your argument why mother ,baby and her two excorts should not have been permitted to go all together to Italy and to have been met on landing (if thought necessary) by Italian social services.I believe Essex certainly had the power to allow this so that is what should have happened even if they retained parental responsibilit until the Italians took over.
    My whole point is that thiswas an Italian lady not resident in UK BUT ONLY THERE FOR A SHORT VISIT AND THAT NO CIRCUMSTANCE CAN JUSTIFY HER LOSING HER BABY TO FORCED ADOPTION IN THE uk during that visit when all the family members were in or from Italy;

  21. I have been wondering why they needed the rushed emergency care order when they had her detained for 10 weeks without a care plan in the eventuality of the onset of birth. Did the NHS not realize pregnant women give birth at some point? Did they skip sex-ed class.

    Also Sir Munby said there were numerous errors in the LAs paperwork filed for the gag order. Is sloppy paperwork the norm in the UK? In my country you are required to file paperwork correctly if you want to proceed in the court system.

    • yes,

      it is almost standard in the Family Court.

      Also deliberately inaccurate evidence and concealment of evidence if it aids your case.

      Sorry, Familoo, but it’s true.

  22. Before someone chimes in with the “she could have gotten better before the birth”, that is a non starter as noted by the NHS noting that the schizophrenic and psychotic women could not be medicated for fear of harming the foetus. As such it seems irresponsible to have not planned ahead.

  23. sorry on the previous post I made a typo woman not women. I apologize

  24. Also of note I haven’t been able to find the original Italian judgement giving their blessing to the UK court system, if someone could link it I would appreciate it very much. I tried google but could not find it.

    Also if a bank robber robs banks twice in Britain, after serving two sentences, do they throw him in prison for life based on the evidence that he might rob a bank a third time?

  25. Familoo/lucy? Why do you use two names pick one.
    You had stated previously that parents who are drug addicts should face CoP in order to see if they are fit parents. What about Nigella Lawson the junkie who admitted to snorting coke and smoking weed possibly even in front of her children? Should she face the possibility of losing her children?

    • John Dimon, I sometimes show up with my full name for technical reasons too boring to enunciate here, to do with whether I post a comment from within wordpress or from my phone. Since I am the author of the blog and my identity and online name are both clearly set out in the about page and since my photo is clearly identifiable I doubt anyone will be terminally confused.
      I don’t think I have previously stated “that parents who are drug addicts should face CoP in order to see if they are fit parents”, not least because the Court of Protection does not deal with child protection. Drug addiction per se does not necessarily equate to poor parenting, its a question of how extensive the drug use is, how well managed it is, and what the risks are in a particular case. I don’t know enough about the Nigella Lawson case to comment and in any event the allegations of drug use against her were admitted only to a very limited extent (as I understand it from press reports). I would not suggest someone’s children should be removed on the basis of a tabloid headline or some isolated and infrequent drug use (which incidentally I don’t think really equates being a “junkie” (see urban dictionary). She has neither admitted nor been proved to be a junkie and I’m not going to entertain any further comments on this topic which are potentially defamatory. I have posted your comment only because it appears simultaneously with this comment.

  26. Thanks for the reply. I admit I was somewhat out of line with the nigella comment trying to prove a point and did so poorly.

    I still have a hard time understanding why they hadn’t created a care plan for the birth that was bound to happen at some point.

  27. Dear Familoo,

    You say “Now it’s a Trilogy . . .” but is it? We have two of the principal judgments but where is the third that completes the trilogy – the interim care order? This was the decision that separated mother from child despite medical advice to the contrary.

    Happy New Year!

    • It’s a trilogy of blog posts but not a trilogy of judgments. We await the ICO decision – we do not know what the state of the medical view was at the point at which that was heard, although it seems reasonable to think it was similar to the view expressed at the hearing before Mostyn J not long before.

  28. My mistake, but it does form an interesting trilogy of key judgments one of which is starkly missing.

    Are we going to get the key ICO judgement? I think not. Why do we have to wait for another judge to make his mind up when key elements of the case have already been publicaly disclosed?

    Is this the judiciary trying to cover up their tracks? Could the head of family division not produce a précis himself?

    • The President is highly unlikely to “do a precis” of another judge’s judgment unless he was describing it in the course of an appeal from that order. In any event, if a transcript were available for such a thing to be done I suspect it would have been published. It may well be that none of the parties and no member of the press has applied for the decision to be transcribed – and if it is not the subject of an appeal and not directly relevant to any other outstanding application I suspect public funding would not pay the costs of such an application anyway. Probably the tape has not been transcribed. Possibly the tape has been lost. Possibly it is being done. It would help those of us who are interested in the case if it were published but it won’t happen unless someone sets the wheels in motion.

      • Nothing like a spot of tape machine malfunction to get the head of family division out of a tight spot, is there? That, and diminished zeal on the part of legal commentators to get to the truth.

        So it’s ok to leave the public in ignorance and not knowing precisely what evidence did cause the immediate rupture of this mother’s relationship with her baby?

        I think you ought to continue posing the question.

        • When have I said it’s ok? I’ve said several times I expect and hope to see the judgment as it is the last piece of the jigsaw. I would have thought that the press who have been so keen to report this might have made an application for its release and transcription but it seems not. It’s certainly not the responsibility of legal bloggers.

  29. Some folk wear wigs and talk in court,some folk sell apples and strawberries by the roadsid,but social workers earn their living taking children from their parents and racking up numbers of adoptions for their adoption scorecards.Understand this and you are at least halfway to understanding the whole family court and forced adoption systems !

  30. […] I was going to write my own commentary but the work has been done formidably over at Pink Tape, so I take the liberty to linking to that excellent account of the case (do note that there are two sequels to the post I am linking to here and here). […]

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>