Protecting the Unborn–‐New Rights in Gestation?
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02580.x |
| Date | 01 May 1987 |
| Published date | 01 May 1987 |
| Author | Andrew Bainham |
NOTES
OF
CASES
PROTECTING
THE
UNBORN-NEW RIGHTS
IN
GESTATION?
THE
compulsory removal of babies from their mothers at birth is
not a new phenomenon although the legal basis for such action by
Social Services has always been questionable.’ The High Court
undoubtedly possesses jurisdiction in wardship proceedings to order
the removal
of
a child from hospital where it can be demonstrated
that this is in his best interests. But in the majority
of
cases local
authorities do not invoke the assistance of the High Court and
instead rely on the authorisation of a single magistrate under a
Place
of
Safety Order.2 The order allows temporary detention
of
the child for a period
of
up to
28
days. Thereafter an interim or
full care order of the juvenile court must be obtained. Most
of
these orders appear to be made under section
1(2)(a)
of the
Children and Young Persons Act
1969
which requires that the
child’s “proper development is being avoidably prevented or
neglected or his health is being avoidably impaired or neglected or
he is being ill treated.” Under this provision it must be established
that there is not simply some
future
risk
of
harm, but that the
requisite ill-treatment or neglect already exists when proceedings
are commenced. The dilemma for local authorities in hospital cases
is obvious. How can it be shown that a parent has behaved
towards the child in a way which satisfies the condition when that
parent has not yet had the care of the child in any realistic sense,
and where both mother and child have as yet been under the full-
time care
of
the hospital staff?
In
D.
(A
minor)
v.
Berkshire County Councir
the issue for the
House
of
Lords was whether the condition could be relied upon
where the only adverse behaviour
of
the mother towards her
“child” related to drug abuse while pregnant resulting in
consequential damage to the foetus which manifested itself at birth.
The decision has wide-ranging implications for the use
of
care and
wardship proceedings by local authorities. It also invites a
reconsideration of the status of the foetus in English law and raises
questions about the applicability
of
the criminal law in analogous
situation^.^
’
See
M.
D. A. Freeman, “Removing Babies
at
Birth: A Questionablc Practice,”
(1980) 10 Fam. Law 131.
*
The order is made under s.28(1)
of
the Children and Young Persons Act 1969. The
applicant is required
to
satisfy the magistrate that he has reasonable grounds
for
believing
that one
of
the primary conditions
for
making a care order under s.1(2)
of
the Act is
satisfied in relation
to
the child
or,
in the case
of
two
of
the conditions, that a court
would find them
to
be satisfied.
See,
e.g.
Ian Young, “The Unborn Child and Criminal Proceedings,” (1986)
L.S.
’
[1987]
1
All
E.R.
20
(Div. Court); 27 (C.A.) and 33
(H.L.).
Gaz. 3808.
361
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