By Rachel Buchanan
In an unusual move, and apparently in direct response to public speculation, Mr Justice Mostyn, sitting as a judge in the Court of Protection, has made public the judgment, transcript and order of 23 August 2012 regarding Re: AA (also known as the “forced C-section” case).
He has done so, he says in his attached note dated 4 December 2013, to “inform and clarify recent public comments”. Mr Justice Mostyn is, of course, referring to the international public debate that has sprung from the now infamous initial reports which appeared in The Telegraph on Saturday 30 November. The two articles run by The Telegraph stated, amongst other speculation, that, “A pregnant woman has had her baby forcibly removed by caesarean section by social workers”, and, “a High Court judge, Mr Justice Mostyn, had given the social workers permission to arrange for the child to be delivered“.
As we have previously written, of course, social workers do not carry out C-sections, consented to or otherwise, but the story quickly made headline news around the world, with speculation galore. Some news stories are still using headlines referring to the removal of the child by social workers and some are now naming the mother and showing (albeit pixilated) images of the mother and child. Without sight of the judgment of the application regarding reporting restrictions in this matter, we will, in accordance with s97(2) of the Children Act 1989, not be publishing the name of the mother.
Now that Mr Justice Mostyn has made this information public, we are in a position to examine some of the facts more fully.
The Telegraph claimed to have had sight of legal documents at the time of publishing the initial articles. Which documents they were we cannot be certain, but it seems unlikely that they were either of the judgments which have since been made public. Had they been, then surely the most basic of facts would not have been inaccurate. The information now available to us is as follows:
- The application to the Court of Protection was made by the Mid-Essex Health Trust due to medical concerns over the risk that the pregnancy posed to the mother’s health.
- The mother was 39 weeks pregnant and full term.
- This was not the mother’s first caesarean section; her first two children had been delivered by elective section and there was an increased risk to the patient (regardless of capacity) if she delivered naturally.
- Although we are not privy to the exact medical advice of the mother’s obstetrician, the judgment does refer to there being a “significant risk of a ruptured womb” if the mother were to deliver the child vaginally, and the transcript itself states, “because of her mental state, if she were dissembling or otherwise being uncooperative, they would not be able to monitor the baby’s heartbeat, for example, to see whether there were the potential uterine rupture complications emerging”, and, therefore, a C-section “was manifestly in her best interests”.
- The mother was suffering from severe mental health problems described as a, “schizophrenic disorder which was psychotic in nature”, rather than, “something of a panic attack”, as first reported in The Telegraph.
- The mother was represented by a QC appointed by the Official Solicitor who did not contest the application;. the QC agreed that the C-section was in the mother’s best interests.
- The application was decided solely on the mother’s best interests: “the interests of this unborn child are not the concern of this court as the child has no legal existence until he or she is born, other than in respect of tortious acts committed on him or her. So the decision must be made squarely within the four corners of the Mental Capacity Act 2005”.
- The Court of Protection had no jurisdiction over the child. Mr Justice Mostyn commented in his note that he advised the local authority (which was not a party to or represented in the proceedings, nor present at the hearing) that, “it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor”.
These newly released documents clearly show to be false the initial assertions that it was social workers who sought the surgery to remove the child.
This does not change the fact that, had these judgments been available in the first place, this level of inaccurate speculation may have been somewhat avoided. Public judgments do not remove the risk of ill-informed postulating, but might at least go some way to countering the negative and damaging effects of those keen to vilify without being in possession of (m)any of the facts.
This also does not change the fact that the adoption proceedings are continuing, and that they may have been deemed to have been made too lightly, which is a cause for concern (especially in light of previous criticism by the court of the adoption process in Re B-S Children, in which it was said that there is “recurrent inadequacy of the analysis and reasoning put forward of the case for adoption”. Nor does it mean that the decision to place the child with British parents, rather than alternatives, is not controversial and should not be discussed.
It would be helpful though, when discussing significant human rights issues, if the basis on which these discussions took place were factual and not railroaded by false assertions and speculation.
Lucy Reed, Family Law barrister, explains in her blog the relevant court proceedings that will be running in this ongoing case (her comments are reproduced here with her permission):
“Readers who do not work in the field of child care law may be confused as to what proceedings are ongoing, when we have a final judgment making care and placement orders. So here is a thumbnail sketch:
- A care order authorises a Local Authority to keep a child in its care and to select an appropriate placement for the child.
- A placement order authorises the Local Authority to place a child with prospective adopters. It is not an adoption order. Probably, although we do not know, there is an outstanding application for an adoption order made by a prospective adopter(s).
- It might be the case that the Mother is seeking leave to oppose the making of the adoption order and to do this she will need to show a change of circumstances. There has been a lot of recent case law from the Court of Appeal about that, which it is not the purpose of this post to summarise, but suffice it to say that it seems now that a parent seeking leave to oppose the making of an adoption order does not have to overcome quite such a high hurdle as was previously thought, although it is still pretty tough. If the Mother does not get leave she cannot oppose the making of the order. I speculate that this is likely to be what is happening within the proceedings because we are told by the Italian lawyer that the Mother’s contact was stopped after some months of monthly contact, and it is common for contact with birth parents to be drawn to a close once an adoptive placement has been identified, in order to enable the child to invest in their new placement. I may be wrong about this, but I think it is helpful to readers who are perplexed by what is happening to try and place the known information within the legal framework.
- Other possibilities are that there is a late appeal or that there is an application to revoke the placement order probably on the basis of a change of circumstances. Alternatively there may be some novel application I haven’t thought of.”
Lucy Reed goes on to analyse Mr Justice Mostyn’s decision making process:
“As for the decision itself, it was certainly lawful – in the sense that the judge dealt correctly with the application in two stages. Firstly he considered whether the Mother had capacity to make her own decision in relation to the litigation or the c-section. On the basis of the “clear” medical evidence he concluded she did not. He did not assume she lacked capacity simply because she was under section. Had he concluded she had capacity that would have been the end of it. It would have been up to her to make whatever foolish or dangerous decision about delivery she wished. Having established she lacked capacity at that point in time (which I have seen nobody seriously contest) the Judge’s job was to decide what was in her best interests. He considered the impact upon the mother’s mental health of doing nothing and of injury resulting to her baby.
Although many will no doubt say that the best interests decision made was the wrong one, given the gravity of it, and the level of risk, that is ultimately what we task High Court Judges with doing – taking impossible decisions. For my part the facts do not appear to be anything like as grave and urgent as I had imagined they might be, although plainly there was significant risk, but I would not like to put myself in Mostyn J’s shoes without seeing and hearing the evidence he heard. There are also perfectly legitimate arguments to be had about whether judges should ever be able to impose this sort of surgery on a woman and about the exclusion of the subject of Court of Protection proceedings from the proceedings (except indirectly through the Official Solicitor).”
It is clear that all of the systems which involve making difficult decisions, especially those made on behalf of other people, require more transparency. Essex County Council has not helped the secrecy allegations by making applications to the court to restrict reporting when statutory powers are in place to prevent this already. We would, however, suggest that publishing speculative articles in the mainstream press using inflammatory wording is not the way to achieve this.