NOTES OF CASES
| Date | 01 November 1988 |
| Published date | 01 November 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01785.x |
NOTES
OF
CASES
CAN
You
WARD
A
FOETUS?
THE
list of “don’ts” for pregnant women becomes longer by the
day. Public awareness of the dangers to the developing foetus has
increased
so
rapidly over the last
25
years that most pregnant
women now know the need to take care especially during the early
weeks of pregnancy. More recently, this vigilance has entered the
realm of child protection. Those with responsibility for the
protection of children at risk know that a pregnant mother has
the ability to harm her unborn child just as effectively and
permanently by her behaviour before its birth as she could do by
deliberate abuse afterwards. This is demonstrated with tragic clarity
by a case like
D
v.
Berkshire
C.C.’
where a baby was born with
drug withdrawal symptoms due to its mother’s excessive use of
drugs during her pregnancy. There the local authority’s intervention’
came too late to prevent the damage to the foetus; only curing its
mother’s drug addiction early in her pregnancy would have fully
protected it from harm.
The mother’s ante-natal behaviour in
Re
F,3
the subject of this
note, involved less obvious danger to the foetus than in the
Berkshire
case; nevertheless the local authority were clearly
determined to do all that they could to protect it. They took the
entirely unprecedented step of seeking to ward the unborn child in
the hope that the protective cloak of the wardship jurisdiction
could be used to impose restraints on the mother’s way of life
during the remainder of her pregnancy. The mother was well-
known to the local authority. She had a history of severe mental
disturbance and drug abuse and a care order had been made in
respect of her first child, prior to her disappearing with him and
living a nomadic existence in Europe. That child was now living
with long-term foster parents and was to be adopted. The mother’s
lifestyle had continued unchanged but she was now pregnant again
and her bizarre behaviour made the local authority concerned for
the welfare of the unborn baby. She disappeared again but the
local authority sought orders from the court, in the exercise of its
wardship jurisdiction, directing the court tipstaff to seek her out
and directing her to reside in a certain place and attend at a certain
hospital during her pregnancy; they also sought orders relating to
the care and control
of
the child when born.
’
[1987]
1
All
E.R. 20.
The local authority took the baby into care by obtaining a care order under s.1(2)
of
the Children and
Young
Persons Act 1969 on the basis
of
the mother’s ante-natal
behaviour. The Berkshire case was discussed by
A.
Bainham, (1987)
50
M.L.R. 36, and
by
J.
E.
S.
Fortin, (1988)
51
M.L.R.
54.
[1988] 2
All
E.R. 193.
768
Nov. 19881
NOTES
OF
CASES
769
The Court
of
Appeal unanimously affirmed the decision of
Hollings J. at first instance that the wardship jurisdiction could not
be used to ward an unborn child. Nevertheless, the decisions of
May, Balcombe and Staughton LL.J. were far from unanimous and
raise numerous important issues, the central one relating to the
scope of the wardship jurisdiction. It is submitted that the Court of
Appeal interpreted this too narrowly and that in proper cases it
could be used for the protection
of
the unborn child.
The local authority’s application was a novel one and counsel for
the mother opposed it by arguing,
inter
ah,
that previous decisions
such as
Paton
v.
Trustees
of
BPAS,4
and
C
v.
S5
clearly established
that the unborn child has no legal rights or personality
of
his own
and thereby precluded the use
of
the wardship jurisdiction for its
protection. This line of reasoning was weak, and their Lordships
did not speak with one voice when considering it. Although it
appeared
to
impress May L.J., Staughton L.J. seemed more
concerned with the practical difficulties inherent in the court
granting orders sought by the local authority, and did not comment
specifically on this aspect
of
the case. Only Balcombe L.J., whose
judgment was the most lengthy, pointed out that the decisions
denying legal rights to the unborn child were of no particular
relevance to the scope of the wardship jurisdiction. He said,
“However, these decisions only relate directly to the legal rights
of
the foetus: they are not decisive of the question before us, namely
has the court power to protect a foetus by making it a ward of
court.”6 This comment is unquestionably correct; for the essence of
the wardship jurisdiction is that it is protective and may be required
for those who need protection precisely and solely because they
have no right to ensure their own. The fact that there need be
no
lis
between the parties and that in wardship proceedings the child
is not necessarily a party indicates the unusual and extremely
flexible nature of the wardship jurisdiction. Arguably then, if the
High Court deems protection to be necessary for a foetus, that
entity’s lack
of
legal rights need not preclude its being warded.
A less fundamental problem regarding this novel use of the
wardship jurisdiction concerns the interpretation of section 41 of
the Supreme Court Act 1981 which refers only to a “minor” being
made a ward of court. Oddly enough, that term appears to have
no satisfactory definition, although its meaning is implicit from
section
1
of the Family Law Reform Act 1969, which explains that
“a person” attains full age at the age
of
18; obviously under that
age “a person” must be “a minor.” Does that mean then that the
1981 Act cannot be used for the warding
of
a foetus because the
unborn cannot be deemed a “minor”? Surely not, since good
analogies already exist for a more flexible interpretation of such
[I9791
Q.B.
276.
[I9871
1
All
E.R. 1230.
[I9881 2
All
E.R. 193, at
p.199.
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