DM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 29 September 2014 |
| Neutral Citation | [2014] EWHC 3119 (Fam) |
| Docket Number | Claim No: SE 11 P 00839 |
| Court | Family Division |
| Date | 29 September 2014 |
[2014] EWHC 3119 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice, Strand
London, WC2A 2LL
Mr Justice Hayden
Claim No: SE 11 P 00839
Miss L Cavanagh (counsel) appeared on behalf of Sunderland City Council.
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:-
i) interference with the mother/baby relationship following the birth, to a degree which involved some unspecified level of forced separation and, potentially, removal of the child;
ii) that the mother should not be informed of key aspects of the plan.
I phrase the ambit of the relief sought carefully, because it seems to me that, whilst the local authority thought long and hard about the birth plan, it had not managed to reflect fully on the practicalities, extent of their intervention or the proportionality of the measures required.
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:
(1) Does she have the capacity to make decisions as to the contact she has with professionals?
(2) Does she have the capacity to make decisions in relation to the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction?
(3) Does she have the capacity to make decisions as to the treatment that she should receive following the birth of the baby?
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...
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...hard to see how the judge's evaluation would be likely to add anything to the assessments of the nursing and medical team. In Re: DM [2014] EWHC 3119 (Fam) I emphasised the important and powerful observations of Judge LJ in St George's Healthcare NHS Trust v S and R v Collins & Ors, ex par......