DM, Re (Rev 1)

This is an application made by the Sunderland City Council, pursuing the twin jurisdictional routes of the Human Rights Act 1998 and the invocation of the inherent jurisdictional powers of the High Court.

This Claimant local authority sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult, which contemplated:-

This case came before me on Friday 26^th September 2014, when I adjourned it over the weekend because I did not think that the evidence had been fully marshalled. Nor was I satisfied that the range of professionals involved in this case had yet had the opportunity fully to understand and absorb the impact of what each had to say. This morning, it is plain that the matter has been given further anxious consideration over the weekend, a weekend in which, if I may say so, it is obvious that a great amount of work has been done.

The local authority now seek permission to withdraw its application. I grant that without hesitation because, having read the papers, I have been far from persuaded of the necessity for or proportionality of the relief sought.

The facts of the case are very sad, perhaps the more so because they are not unique. The couple concerned are both vulnerable adults. I emphasise that “vulnerable” is not to be conflated with the concept of incapacitous. This expectant mother has twice been assessed by suitably qualified and experienced professionals, to analyse whether she understands the significant issues surrounding her impending confinement. Those issues are:

In respect of each of these central issues, her treating obstetrician and a consultant in forensic and clinical psychology, instructed at my request, both firmly concluded that the mother did indeed have the capacity to take all of those decisions and to evaluate the issues that they involved.

The history shows that this young woman has given birth on eight previous occasions. Each of those children was removed from her care and ultimately, placed for adoption (one child was placed within the extended family). Time and again, a wide range of professionals has concluded that neither together nor separately is this couple able to provide a sufficiently safe or nurturing environment for a baby or child in their care, even if provided with extensive support. The fact that each wishes to be a parent is all too desperately clear.

One further significant feature of the past is that the mother has gone into hiding late in her pregnancy and, in fact, given birth, to twins at home. Although they were safely delivered, the mother’s health had been placed at severe risk.

A decision was taken, predicated entirely upon the mother’s own health, the circumstances of which I will not further burden this judgment with, that the forthcoming labour should be induced. Understandably, the local authority’s concern was that the mother might disappear from view again, jeopardising her own health, that of the unborn child and the health of the child following birth. The local authority sought to protect the mother and to put in such protective measures as they could on the birth of the child. Those instincts are laudable, but there is a paternalistic complexion to them.

There are a wide range of protective measures in law geared to defend the vulnerable. The Mental Capacity Act 2005 has a statutory regime facilitating the taking of decisions in the welfare interests of those who lack capacity to take those decisions themselves. More variously and throughout the jurisdictions, there are many interlocutory and injunctive measures that can be taken to protect the vulnerable.

However, the law is also vigorous to protect the fundamental principle of personal autonomy. That is why, for example, the Mental Capacity Act makes the ‘presumption’ of capacity, a presumption which can only be dislodged by cogent evidence. In a mature democratic society, individuals are entitled to take their own decisions, both good and bad. They are at liberty to make their own mistakes. This tension between a desire to protect the welfare of a vulnerable adult and the obligation to respect her autonomy has fallen into sharp focus in this application.

The starting point is that every local authority has an obligation to consult parents in the care planning for their children and/or unborn child, reinforced by the Children Act guidance and the Public Law Outline. The starting point is the Children Act 1989 Guidance and Regulations, Volume 1, Court Orders, 1991. Paragraph 3.10 provides:

“Full inter-agency co-operation, including sharing information and participating in decision making is essential whenever a possible care or supervision case is identified. The local authority should lead by example and be prepared to make full use of the new provisions on co-operation between agencies in sections 47 and 27. A multi-disciplinary, multi-agency case conference should always be held, based on the principles and arrangements set out in Working Together and local guidelines on joint planning and co-operation, and it should seek to recommend an agreed course of action.

Parents, the child, (if of sufficient age and understanding) and others with a legitimate interest in the child’s future should be involved wherever possible. Involvement will be more than just attendance; families should be able to participate in the decision making process and they will need to be kept informed of decisions as they are made, the reasoning behind those decisions and their likely consequences.

No decision to initiate proceedings should be taken without clear evidence that provision of services for the child and his family (which may include an accommodation placement voluntarily arranged under section 20) has failed or would be likely to fail to meet the child’s needs adequately and there is no suitable person prepared to apply to take over care of the child under a residence order.”

This Guidance was revised in April 2008; the obligations upon a local authority to consult parents and families are set out in paragraphs 3.23 to 3.25. These revisions updated the Guidance to bring it in line with the PLO (Public Law Outlined) and in particular the pre-action obligations upon public authorities under the scheme. The principles in the 1991 Guidance remain though the emphasis now is on parental consultation rather than on the holding of a case conference, as foreshadowed Westminster City Council v(1) RA & (2) B (3) S, by their Children’s Guardian [2005] 2 FLR 1309.

As Miss Cavanagh, who today appears on behalf of the local authority, points out, that passage, as so much in modern family law does, has its origins in the Cleveland Report. At page 246 of that report, paragraph 4(e) states:

“Parents should be informed of case conferences and should be invited to attend for all or part of the conference, unless in the view of the Chairman of the conference their presence will preclude full and proper consideration of the child’s interests.”

These are the principles that underpin the core right of every adult facing a plan, which envisages the removal of a child, namely to be consulted and involved in the process.

It is so easy, in my experience, for those who spend their professional lives in the sphere of child protection or perhaps even in paediatrics, to start, very early on in the course of a pregnancy, to think of the foetus as an individual with rights. However, the fact remains that a foetus, in UK law, has no rights of its own until it is born and has a separate existence from its mother. That principle infuses the whole of the criminal and civil law in this country, articulated in Paton v British Pregnancy Advisory Service Trustees[1979] QB 276, at 279, [1978] 2 All ER 987. Specifically protection under the Children Act 1989 applies only to a ‘child’, defined by S105 as a ‘person under the age of 18 years’. An unborn child is, manifestly, not a person for this purpose. Similarly, Balcombe LJ in Re F (in Utero) (Wardship) [1988] 2FLR 307 confirmed that the inherent jurisdiction did not extend to theunborn child.

So what is in focus in this case, therefore, are the future rights of a child, crystallising on birth and the present and existing rights of this pregnant capacitous woman. In St George’s Healthcare NHS Trust v S and R v Collins & Ors, ex parte S [1998] 2 FLR 728 Judge LJ, in the Court of Appeal, concluded that a capacitous adult should be entitled to decline medical treatment even if her life or that of her unborn child depended on it.

“That said however, how can a forced invasion of a competent adult’s body against her will even for the most laudable of motives (the preservation of life) be ordered without irremediably damaging the principle of self-determination? When human life is at stake the pressure to provide an affirmative answer authorising unwanted medical intervention is very powerful. Nevertheless the autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable, and indeed to many would appear commendable: hence the importance of remembering Lord Reid’s warning against making ‘even minor concessions’. If it has not already done so medical science will no doubt one day advance to the stage when a very minor procedure undergone by an adult would save the life of his or her child, or perhaps the life of a child of a complete stranger. The refusal would rightly be described as unreasonable, the benefit to another human life would be beyond value, and the motives of the doctors admirable. If however the adult were compelled to agree, or rendered helpless to resist, the principle of autonomy would be extinguished.” [page 742]

Reliance was placed, during the course of arguments, on the dicta of Butler-Sloss LJ in Re MB (An adult: Medical treatment) [1997] 2 FLR 426. At pages 436 to 437 the Judge observes as follows:

“… a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The [law] does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.”

That powerful elucidation of the law remains the starting point in all applications of this kind.

The jurisdictional route on which this application was founded lies in the landmark decision of Munby J (as he then was) in Re D (Unborn baby) [2009] 2 FLR 313. That judgment, at the time and in the years that followed, has been the subject of academic comment and judicial scrutiny. In the judgment, there crystallised the concept of ‘anticipatory declaratory relief’. The twin routes pursued by this local authority today are the Human Rights Act 1998 and the general declaratory jurisdiction of the High Court, the origins of which lie in the speech of Lord Brandon in Re F (Mental patient: sterilisation) [1990] 2 AC 1. The Local Authority seek anticipatory relief on the same basis as Re D , in effect, to sanction its actions upon the birth of the child.

It is important to note that in Re D, Munby J was not exercising the inherent jurisdiction in relation to an incapacitated adult. The exercise was there concerned with the best interests of the baby when born. At paragraph 13, the Judge identified 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”

What the Judge emphasised in Re D were the wholly exceptional circumstances in which such anticipatory relief would be granted. It was, he said, necessary to ensure that it was not only ‘appropriate and justified’, but ‘imperatively demanded’ in the interest of safety in the period immediately following the birth of the child. It was always to be regarded, he said, as “highly unusual” and a “very exceptional step”.

It is perhaps helpful, in summary, to revisit, just how exceptional the circumstances of Re D were. The case involved a mother who had gone into labour and the local authority applied for anticipatory declaration that it would be lawful to remove the child at birth, without in any way forewarning the mother of its intention to do so. There had been, on this issue, no other reported case.

The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.

In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.

The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.

The local authority became increasingly clear that it was imperative and in the interest of the unborn child, that upon the birth of the child, to ensure its protection, mother and baby should be separated immediately. However, such was the evaluation of the mother’s mental health, which, as the law reports illustrate, was assessed by a highly respected clinical psychologist, it was clear that if the plan was communicated to the mother, there would be a real possibility that she might, immediately after the birth, harm both herself and the child. There was therefore a high risk of very serious injury or death. On any index of risk this was at the most serious end of the spectrum.

In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950”. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.

My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam).

In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.

Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.

I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.

Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.

Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.

This case was heard in open court with the press in attendance as the issues raised are plainly of public concern. At the conclusion of submissions judgment was delivered ex tempore in open court. I restrained publication of the case and judgment until the baby was delivered in order to protect both the baby and the vulnerable mother.