Bury Metropolitan Borough Council v D

Mr. Anthony Hayden QC appears before me on a matter of extreme urgency, seeking relief of an unusual nature in a case where the circumstances if not, unhappily, unusual are nonetheless extreme.

I am concerned with a mother who, as I understand it, is as I speak in labour. Her previous child L was the subject of care proceedings, concluded before his Honour Judge Iain Hamilton sitting in the Manchester County Court, who gave judgment on 3rd March 2008 explaining why in relation to L he was making both a care order and a placement order. The mother is currently in prison.

The local authority's plan in relation to the unborn child is that the child should be removed from the mother immediately at birth in circumstances where, as I understand it, its plan is almost bound to be ultimately, as in the case of L, for the making of a full care order and adoption. Be that as it may, the local authority takes the view that it is imperative in the unborn child's interest that it be removed at birth. Conscious no doubt of the strictures to be found in my judgments in the Nottingham cases, R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, and R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 2 FLR 1668, the local authority appreciates that it does not have the power to remove the child itself at birth. Its plan envisages that, assuming the cooperation of the prison authorities (which, if I may be permitted to say so, they would probably be well advised for their own purposes to extend to the police), the police, operating in conjunction with the local authority, will exercise their powers under Section 46 of the Children Act 1989 at the moment of birth, following which, depending upon the time of day, but no doubt within a matter of hours, the local authority will seek and, I anticipate, will obtain from the justices in the Family Proceedings Court, an Emergency Protection Order, which from that point on will clothe it with parental responsibility and the power to look after the child.

The immediate problem is that in circumstances which I will come to in a moment the local authority is very concerned indeed, and it seems to me with every justification, that any communication of the birth plan to the mother is likely to lead to an adverse reaction, in circumstances where there is a distinct possibility that the mother may, immediately after birth, harm both herself and the child. It goes without saying that a newborn baby in the first seconds or moments of life is exceptionally vulnerable and that a distraught mother, who, as I will have to describe shortly, has already demonstrated her capacity to threaten violence to her children, would be capable of causing catastrophic injury to the child within a matter of moments.

The question is whether it is lawful for the local authority to conceal from the mother and her partner the nature of its birth plan. Putting the point in slightly different form, the question is whether, despite the requirements of Article 8 of the European Convention, it is lawful for the local authority not to involve the mother and her partner fully in the birth planning for her future child as would normally be required.

I am not concerned with the exercise of any jurisdiction directly concerned with the welfare of the child. The child is, as I speak, still en ventre sa mere and, accordingly, no court has jurisdiction to make any order under the Children Act 1989, nor (see In re F (In Utero) [1988] Fam xxx) can the court exercise its inherent or wardship jurisdiction in respect of children. Equally, Mr. Hayden makes clear that despite the mother's very concerning behaviour there is no evidence suggesting incapacity. I cannot therefore exercise any welfare jurisdiction in relation to the mother, whether the jurisdiction exercisable under the Mental Capacity Act 2005 by the Court of Protection or the inherent jurisdiction of the Family Division in relation to incapacitated adults. I am therefore concerned, it seems to me, and Mr. Hayden is entirely content with this approach, with the inherent jurisdiction of the High Court to grant anticipatory declaratory relief, declaring in appropriate circumstances that some future course of conduct is either unlawful or, as Mr. Hayden would invite me to declare in the present case, lawful. The question therefore, and it seems to me a question which arises wholly independently of the best interests of the mother, is whether it is lawful in the circumstances for the local authority not to share its thinking and its care plan with the mother and her partner prior to the point at which, immediately following the birth, the child is removed, as I would anticipate by the police in the exercise of their powers under Section 46 of the Act.

It is elementary that under Article 8 of the Convention parents have a right to be fully involved in the planning by public authorities of public authority intervention in the lives of their family and their children, whether before, during or after care proceedings, the emphasis for present circumstances obviously being upon that element of the obligation under Article 8 which arises before the commencement of the proceedings. I need not rehearse the authorities in detail. It suffices to refer to such cases as W v United Kingdom (1988) 10 EHRR 29 at paras [63]–[64], McMichael v United Kingdom (1995) 20 EHRR 205 at para [87] and Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42, at paras [30]-[31], [35]-[36].

The European Court of Human Rights at Strasbourg has of course recognised, having regard to the realities of the human condition, that there will be on occasions – exceptional occasions – circumstances which make it inappropriate for there to be such parental involvement. Thus, there have been a number of cases before the Strasbourg Court where the Court has recognised not merely that the emergency removal of children under an EPO or its equivalent is in principle entirely compatible with the Convention but, moreover, that there may be such cases where a without notice application is justified: see, for example, Venema v The Netherlands [2003] 1 FLR 552 and Haase v Germany [2004] 2 FLR 39.

The approach of the Strasbourg Court is to be found in the passage in its judgment in Venema at para [93] where the Court said this:

What are the circumstances which justify the drastic step of removal without the prior involvement of the parent in the process? The answer, in my judgment, is to be found in the domestic authorities which build in this respect upon the Strasbourg jurisprudence. Hale LJ, as she then was, in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, at para [28], stressed that “proportionality … is the key.” Interference with family life can only be justified by what she referred to in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 at para [34] as “the overriding necessity of the interests of the child.” Subsequently, in Re B (Care: Interference with Family Life) [2003] EWCA Civ 786, [2003] 2 FLR 813, at [34], Thorpe LJ speaking of the making of a care order said that the taking of such a step must not be sanctioned by the judge “unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.” Developing that analysis in the context of an interim care order in Re H (A Child) (Interim Care Order) [2002] EWCA Civ 1932, [2003] 1 FCR 350, at para [39], Thorpe LJ spelt out that separation at that stage – and, I would add, a fortiori separation at the previous stage of an Emergency Protection Order – is “only to be contemplated if [the child’s] safety demanded immediate separation”, going on at para [40] to formulate the question as being whether the evidence is sufficient to “sustain the submission that separation was essential to secure [the child]’s safety.”

Although these authorities focus upon the question of the propriety, the legality, of intervening at the EPO or interim care order stage, it seems to me that the same fundamental principles must govern the question which is currently before me. The issue in terms of the Convention is as to the operation of Article 8, and Article 8, as well-known authority demonstrates, has both a substantive and a procedural component, the substantive component regulating the circumstances in which public authority can interfere and the procedural component imposing upon public authority the obligation of engaging and discussing adequately with the parents before it interferes. The test which defines the circumstances in which public authority can interfere by removing the child must equally, it seems to me, regulate and define the exceptional circumstances in which public authority is entitled to proceed without engaging the parents in the decision-making process. The test in short, to adopt the words of Hale LJ, as she then was, and of Thorpe LJ is this: Is the step which the local authority is proposing to take, that is, the step of not involving the parents in its planning and not communicating to the parents its plan for immediate removal at birth, something which is justified by “the overriding necessity of the interests of the child” or something which is "essential to secure [the child's] safety"?

Before turning to address the factual question of whether that test is satisfied, I observe that for the purposes of the declaratory jurisdiction which I am currently exercising it cannot, as it seems to me, make any difference that the child whose future welfare is in issue is as yet unborn. The fact that the child is as yet unborn means that I cannot exercise jurisdiction under the Children Act 1989; it means that I cannot exercise jurisdiction in wardship. But it does not prevent me, in my judgment, exercising jurisdiction under the general law to declare the conduct of the local authority either compliant or, as the case may be, non-compliant with Article 8. Any contrary view would lead to this absurdity, that in circumstances where, compatibly with the Convention and with the Strasbourg jurisprudence, it would be perfectly lawful for a local authority not to engage a parent in its decision-making process between the moment of birth and the subsequent intervention by EPO, and for the court to grant appropriate declaratory relief to that effect, it would not be possible for the court to declare it to be lawful for the local authority to adopt precisely the same approach in the period leading up to birth. That would be absurd and would tend to frustrate the very need to protect the child which is implicit in the Strasbourg jurisprudence.

It is of course always a matter of discretion whether the court should grant a declaration in anticipation that some future course of conduct will or, as the case may be, will not be lawful. But there can be no dispute, not least since the judgment of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, that in an appropriate case the court can, and indeed should, in the public interest and for the proper protection of a public authority, grant that authority an anticipatory declaration that a proposed course of conduct is either lawful or, as the case may be, unlawful. Accordingly, in my judgment, I have jurisdiction to grant a declaration, if the facts justify the grant of such a declaration in the particular circumstances of the case, that the applicant local authority is acting lawfully and compatibly with the Convention in not engaging the parents in the planning process in the way in which Article 8 would normally require.

The question then becomes essentially a question of fact. Can the local authority justify its contention that the circumstances of this case are so exceptional, and that the degree of risk to the unborn child in the period immediately following its birth is so great, as to justify the very drastic step which it is proposing to take, namely, not to engage the parents fully and frankly in the pre-birth planning process? In P, C and S v United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631, at paras [116], [131], [133], the Strasbourg Court spelt out the summary removal of a child from its parents pursuant to an EPO is a “draconian” and “extremely harsh” measure, requiring “exceptional justification” and “extraordinarily compelling reasons”. And as I observed in the third Nottingham case, Re K (Contact) [2008] EWHC 540 (Fam), [2008] 2 FLR 581, at para [25], an order providing for the removal of a child at or shortly after birth and, moreover, with a cessation of all contact between the child and the mother is “something which lies at the very extremities of the court’s powers. Extraordinarily compelling reasons must be shown to justify an order under s 34(4) at this early stage in the proceedings.” Mr. Hayden does not shrink from this. He recognises that the plan which he will be putting before the Justices when the application for the EPO is made, being a plan where the application for an EPO is, as I understand it, to be linked with an application under Section 34(4) of the Act providing for the immediate cessation of all contact, is at the very extremities of the court's powers. But he says that the circumstances of the present case are so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify the Justices making such a decision. Whether or not he or those who represent the local authority will succeed in that contention before the Justices is a matter for another day. It will be a matter for the Justices to consider whether, compatibly with my judgment in X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, and the judgment of McFarlane J in Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701, it is appropriate for them to sanction the granting of an Emergency Protection Order and a Section 34(4) order. But by parity of reasoning Mr. Hayden, accepting that the declaration he seeks from me today is at the extremity of what is permissible under the Convention, submits that the present is such an extreme case as to justify this very draconian and, I stress, highly exceptional course of conduct.

I have no hesitation whatever in saying that in the highly unusual circumstances of this case that very exceptional step is, as it seems to me, entirely justified and indeed imperatively required in the interests, in the period immediately following birth, of the as yet unborn child.

I have been taken through a most concerning log of events which have taken place since the mother's arrival in prison on 22nd January 2009. It shows her to be much of the time in a very distressed state, behaving in a most strange manner and, on 5th February 2009, having seemingly attempted to take her own life, being found in her cell suspended from a window using her nightdress as a ligature. The understandable concern of the prison authorities is reflected in the fact that she is, as I understand it, on a 15 minute watch. There are many entries in those notes giving cause for real concern as to how she will react following the birth of the child.

I also have been taken to a statement by the service manager – the social worker – with responsibility for the case. It makes profoundly concerning reading. The social worker records, for instance, that mother "has always maintained that her children would be better off dead rather than be in the care of the local authority." She records a very disturbing incident relating to L, to which I must return in due course, and goes on to record what she describes as the mother's "belief that there will be reunification after death" – that is, reunification with her children – and that “the solution to her problems [is] reunification in death.”

The incident which I have mentioned was dealt with by Judge Hamilton in paragraph 17 of the judgment to which I have already referred. It arose on an occasion of supervised contact between the mother and L when, despite the fact that the contact was being supervised by two workers, the mother used a cloth to blindfold and gag L, pinned her to the floor and threatened her with a knife. The police had to be called and the incident, which Judge Hamilton described as "unquestioningly distressing and traumatic for the child and rais[ing] significant concerns as to the mother's mental stability", apparently lasted for some 15 minutes. Judge Hamilton was appropriately careful to describe the event in terms of allegations but, as Mr. Hayden has told me, the mother, having subsequently been charged with an offence arising out of the incident, has pleaded guilty and indeed is in custody in relation to it.

Finally and very importantly, there is a very recent report dated 26th February 2009 from Dr. Clive Reading, a Consultant Clinical Psychologist whose work is so familiar to the courts that he requires no judicial encomium from me. He reports on his interview with the mother on 26th February 2009. His report is careful and detailed. So, as is apparent from the report, was his interview with the mother. He records that a clinical psychologist, Dr. Banks, has previously reported, describing her "high level of frustration and reactivity", which in Dr. Banks’ view “makes for significant risk." He goes on to record that the therapy which Dr. Banks recommended "to reduce her level of frustration and desperation" has not in fact commenced, with the consequence, says Dr. Reading, that the personality risk factors identified by Dr. Banks have not been addressed.

Dr. Reading expresses his opinion having, as I say, interviewed the mother, that she "remains likely to engage in impulsive acts when frustrated and angry and that she remains an emotionally desperate woman." He expresses his conclusions as follows:

As Mr. Hayden points out, Dr. Reading has very helpfully analysed as two separate matters the degree of risk that the mother will act in a particular way, that is the degree of probability that the feared event will happen, and, as a separate matter, the degree of harm which will be occasioned if the threatened risk becomes a reality. Dr Reading describes the risk as "probably severe" but says that, whether the risk be severe, moderate or low, the damage which would occur in the event of the risk becoming reality is very high.

I have no hesitation in accepting the evidence put before me. Dr. Reading's report is a compelling piece of work, made all the more worrying in its possible implications and ramifications having regard to the detailed reports I have of the mother's behaviour, not merely her behaviour in relation to the older child, L, but also the profoundly disturbing reports of her behaviour whilst in prison over recent weeks.

It seems to me in light of all this material that the very stringent test which the decisions both of the Strasbourg Court and of the domestic courts of this country have laid down as required to be satisfied if this very drastic and highly unusual step is to be taken is more than adequately met.

I emphasise that just as it will be a rare and exceptional case where a local authority is justified in applying for an emergency protection order without prior warning to the parents, if the justification for this is that alerting the parents to what is proposed may produce the very harm against which the process is designed to protect the child, so it will be a very unusual and exceptional case where a local authority is justified in departing from the obligation laid upon it by Article 8 fully to engage the family in the planning process before the care proceedings start. But that there will, on rare occasions, be such exceptional cases, and cases where such an exceptional step, is lawful and compatible with the Convention, is clear as a matter of law and recognised by both the Strasbourg jurisprudence and the domestic jurisprudence of our courts.

Stressing the point again, because it must not be thought that the course which I am sanctioning in this case is a course to be adopted save in highly exceptional and rare cases, I am however entirely satisfied that the course proposed by the local authority in this particular case is not merely appropriate, it is imperatively demanded in the interests of the safety – the physical safety – in the period immediately following birth of the as yet unborn child. To share the local authority’s planning either with the mother or with the child’s father – for he could not of course be prevented from passing the information on to the mother – would, I am satisfied, be to expose the child to an utterly unacceptable degree of risk of potentially really serious physical harm.

Mr. Hayden rightly drew my attention to the decision of the Strasbourg Court in P, C and S v United Kingdom (2002) 35 EHRR 31, [2002] 2 FLR 631, where the local authority involved and, indeed, the court were criticised in circumstances where it appeared that the local authority had reason to fear, on the basis of the mother’s previous behaviour, that the child who was removed immediately following birth was at risk of being poisoned by her. Mr Hayden accepts, of course, that he is bound and I am bound by the decision of the Strasbourg Court in P, C and S, but it is merely one of a number of cases in a long line of jurisprudence, including, along with a number of other cases, the two cases in the Strasbourg Court to which I have already made reference, Venema and Haase. In my judgment the approach which I am adopting in the present case, underpinned fundamentally by the analysis set out by the Strasbourg Court in Venema and Haase, is entirely consistent with the analysis of the Strasbourg Court in P, C and S.

In the final analysis, of course, the principles are comparatively easy to state; the difficulty is always in applying them to the circumstances of the particular case, for these cases are always fact sensitive. But there is, as it seems to me, a fairly obvious difference in the degree of risk and the need for immediate intervention presented, on the one hand, by a mother who, if she is going to harm the child, is going to do so by poisoning, a risk which in principle is capable of management by ensuring that the mother does not have poison secreted on her when she comes into contact with the child (that being the situation in P, C and S) and the very different situation with which I am faced in the present case where there is the most compelling evidence suggesting a high degree of risk that if the mother is alerted beforehand to what is going on she will react at the moment and immediately following the moment of birth in an impulsive and physically uncontrolled fashion, where she may lash out or do something else causing, even in a matter of moments and even if there are others present, very serious physical damage to the child.

That is the risk against which the local authority in this case understandably wishes to protect the child. And it is, for all the reasons I have given, and not least in the light of Dr. Reading's report, as it seems to me, a very real risk indeed. The degree of risk that the mother will behave in that way, I am inclined to agree with Dr. Reading, is probably at the severe end of the scale. But even if that not be so, the potential consequences for the child if the mother was not to cooperate in the birth process or was to lash out in some way, whether uncontrolled or controlled and deliberate, simply do not bear thinking about.

In the circumstances and for those reasons I have, as I indicated at the outset, made a declaration that the local authority's proposed course of conduct is lawful.

I am conscious that the mother has not been served with these proceedings and that, in consequence, there may be a very real question as to whether she can in any way be bound by the declaration I have granted. But the very nature of the risk which she presents, and against which the local authority appropriately wishes to protect her unborn child, means that she cannot be alerted to the application, for that would be to frustrate the very order which the local authority seeks. The local authority, if I may say so, has acted entirely properly in bringing the matter to court rather than merely proceeding on its own way. It is entitled to seek the sanction of the court for the unusual step it is proposing to take. And it is, in my judgment, proper for the court in such circumstances to make an order of this kind, even in the absence of the respondent.