Bury Metropolitan Borough Council v D; Re D (unborn baby) (birth plan: future harm)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Year | 2009 |
| Date | 2009 |
| Court | Family Division |
Care proceedings – Child likely to suffer significant harm – Birth planning – Anticipatory declaration – Mother harming first child during supervised contact visit – Mother becoming pregnant again – Local authority planning to remove baby at birth – Evidence suggesting high probability of mother harming self or baby if made aware of birth plan prior to removal – Local authority seeking anticipatory declaration regarding proposed course of conduct – Whether lawful not to involve mother and partner in birth planning – Whether court having jurisdiction to grant declaration in relation to unborn baby.
The mother, who was pregnant when she arrived in prison in January 2009, also had another child, L, in relation to whom care and placement orders had been made. On an earlier occasion of contact with L, the mother had blindfolded and gagged her, pinning her to the floor and threatening her with a knife, notwithstanding the supervised nature of the contact. According to the social worker dealing with the case, the mother believed that there would be ‘reunification’ with her children after death, and that such reunification was ‘the solution to her problems’. Whilst in prison, she attempted to commit suicide, using her nightdress as a ligature. The local authority’s plan in relation to the unborn child was that it should be removed from the mother immediately at birth by the police exercising their powers under s 46 of the Children Act 1989, following which it would seek an emergency protection order. The report of a consultant clinical psychologist concluded that informing the mother of the local authority’s intentions was likely to ‘create a a very high level of frustration, emotional reactivity and desperation’, making it highly probable that she would harm herself, the child or others. The local authority accordingly sought a declaration from the court that, despite the requirements of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998), in the circumstances, it would be lawful not to involve the mother and her partner in the birth planning, as would normally be
required. An issue arose, inter alia, as to whether the fact that the child had not yet been born prevented the court from granting declaratory relief.
Held – (1) It was elementary that under art 8 of the Convention, parents had a right to be fully involved in the planning by public authorities of public authority intervention in the lives of their family and children, whether before, during or after care proceedings. The test which defined the circumstances in which a public authority could interfere by removing a child had equally to regulate and define the exceptional circumstances in which a public authority was entitled to proceed without engaging the parents in the decision-making process. The test, in short, was whether the step which the local authority was proposing to take was justified by the overriding necessity of the interests of the child or was essential to secure the child’s safety. On the evidence, the course proposed by the local authority in the instant case was not merely appropriate, but imperatively demanded in the interests of the physical safety of the child in the period immediately following his or her birth. To share the local authority’s planning with either the mother or the child’s father (who could not be prevented from passing the information on to the mother) would be to expose the child to an utterly unacceptable degree of risk of potentially very serious physical harm; Re C and B (children) (care order: future harm)[2000] 2 FCR 614, Re O (a child) (supervision order: future harm)[2001] 1 FCR 289, Re H (a child) (interim care order)[2003] 1 FCR 350 and Re B (children) (care: interference with family life)[2004] 1 FCR 463 considered.
(2) For the purposes of the declaratory relief sought, it made no difference that the child whose future welfare was in issue had not yet been born. That fact meant that the court could not exercise jurisdiction under the 1989 Act or jurisdiction in wardship. However, it did not prevent the court from exercising jurisdiction under the general law to declare the conduct of the local authority either compliant or non-compliant with art 8 of the Convention. Any contrary view would lead to the absurdity that while 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 susequent intervention by an emergency protection order, 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. Such an absurdity would frustrate the need to protect the child. Furthermore, although it was always a matter of discretion whether the court should grant a declaration in anticipation that some future course of conduct would or would not be lawful, authority established that in an appropriate case the court could and should, in the public interest and for the proper protection of a public authority, grant an anticipatory declaration that a proposed course of conduct was either lawful or unlawful. Accordingly, the court had jurisdiction and would grant a declaration that the local authority’s proposed course of conduct was lawful; F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 considered.
.
Cases referred to in judgmentB (children) (care: interference with family life), Re[2003] EWCA Civ 786, [2004] 1 FCR 463, [2003] 2 FLR 813.
C and B (children) (care order: future harm), Re[2000] 2 FCR 614, [2001] 1 FLR 611, CA.
F (In Utero), Re[1988] 1 FCR 529, [1988] 2 All ER 193, [1988] Fam 122, [1988] 2 WLR 1288, [1988] 2 FLR 307, CA.
F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, sub nom Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 FLR 376, HL.
G (care: challenge to local authority’s decision), Re[2003] EWHC 551 (Fam), [2003] 2 FLR 42.
H (a child) (interim care order), Re[2002] EWCA Civ 1932, [2003] 1 FCR 350.
Haase v Germany[2004] 2 FCR 1, [2004] 2 FLR 39, ECt HR.
K (Contact), Re[2008] EWHC 540 (Fam), [2008] 2 FLR 581.
McMichael v United Kingdom[1995] 2 FCR 718, ECt HR.
O (a child) (supervision order: future harm), Re[2001] EWCA Civ 16, [2001] 1 FCR 289, [2001] 1 FLR 923.
P, C and S v United Kingdom[2002] 3 FCR 1, [2002] 2 FLR 631, ECt HR.
R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660.
R (on the application of G) v Nottingham City Council [2008] EWHC 400 (Admin), [2008] 3 FCR 568, [2008] 2 FLR 1668.
Venema v Netherlands[2003] 1 FCR 153, [2003] 1 FLR 552, ECt HR.
W v United Kingdom (1988) 10 EHRR 29, [1987] ECHR 9749/82, ECt HR.
X (emergency protection orders), Re[2006] EWHC 510 (Fam), [2007] 1 FCR 551, [2006] 2 FLR 701.
X Council v B (Emergency Protection Orders)[2004] EWHC 2015 (Fam), [2005] 1 FLR 341.
ApplicationIn 2009, the local authority, Bury Metropolitan Borough Council, sought a declaration that it would be lawful to conceal from the mother and father its plan for the removal of the child at birth, despite the normal requirement for them to be involved in such planning pursuant to art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment.
Anthony Hayden QC for the local authority.
The respondent did not appear and was not represented.
MUNBY J.[1] 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.
[2] 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 Judge Iain Hamilton sitting in the Manchester County Court, who gave judgment on 3 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.
[3] The local authority’s plan in relation to the...
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Re A (Father: Knowledge of Child's Birth)
...of child’s existence) [2004] 1 FLR 527. Bury Metropolitan BC v D, Re D (unborn baby) (birth plan: future harm)[2009] EWHC 446 (Fam), [2009] 2 FCR 93, [2009] 2 FLR 313. C (a child) (adoption: duty of local authority), Re[2007] EWCA Civ 1206, [2007] 3 FCR 659, [2008] Fam 54, [2008] 3 WLR 445,......