Anonymity in the courts: Part 1, the “forced Caeserean”
18 December 2013
AA, Re (Including: note by Mr Justice Mostyn) 4 December 2013 [2013] EWHC B24 (COP) – read note and judgment
In the matter of P (a child) 13 December 2013 [2013] EWHC 4048 (Fam) – read judgment
The full story of the “forced caesarean” that went viral a few weeks ago has been set out by Adam Wagner and others in his post “Lessons learned”. In order to set the record straight, Mostyn J has now authorised the 2012 judgment to be released, together with the verbatim transcript of the proceedings and the order made. Far from the baby being snatched from the womb of its unwilling mother at the behest of interfering social services, this is what took place:
… it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust [not social services], supported by the clear evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
Since she had previously had two children by caesarean section, the “clear obstetric advice” was that the mother should have a planned caesarean in order to avoid risks to herself, and to the child, of a uterine rupture. There was a significant risk of a rupture were she to have a natural vaginal delivery. The psychiatric evidence also indicated that a caesarean section was in her best interests.
Both of her two previous children had been taken into care, since the mother had been compulsorily detained under the Mental Health Act 1983 s.3 and was seriously ill. She suffered from psychotic episodes and had delusional beliefs. The local authority was not represented before the court but intended to invite the police to exercise their powers under the Children Act 1989 s.46 to remove the baby into police protection for 72 hours once it was born, in order to prevent the baby from coming to harm.
Mostyn J granted the declaration, holding that the instant case fell squarely within the guidelines given in MB (Caesarean Section), Re [1997] 2 F.L.R. 426. It was clearly in the mother’s best interests in terms of her own health, and for her child to be born alive and healthy. The court therefore authorised a planned caesarean under general anaesthetic and the use of reasonable restraint in order to achieve the operation safely.
Subsequent events – all of which took place before the media storm broke on 1 December 2013 – were set out in a statement released by Essex County Council on 2 December:
Application for Interim Care Order 24 August 2012
Mother took part in the care proceedings ending on 1 February 2013
Mother applied to Italian Courts for order to return the child to Italy in May 2013. Those courts ruled that child should remain in England
In October 2013 Essex County Council obtained permission from County Court to place child for adoption
On 2 December 2013 Sir James Munby, President of the Family Division, authorised the Judicial Office to issue the statement that he had ordered that the matter be transferred to the High Court and any further application in respect of the child be heard by him. On the same day the Council made a telephone application for a reporting restriction order prohibiting publication of the name and date of birth of the child and the names of the child’s mother, the child’s father and any member of the mother’s family and any pictures of the family if such publication was likely to lead to the identification of the child.
The President decided that the circumstances were not such as, having regard to section 12(2) of the Human Rights Act 1998, to justify the making of any order unless steps had first been taken by Essex County Council to notify the media of the application.
On 4 December 2013, Mostyn J authorised the publication of his judgment of 23 August 2012 together with the transcript of the proceedings before him, as set out above.
In the Child P hearing, Essex County Council applied again for a reporting restriction. As Sir James Munby observed, the case has been the subject of much reporting and comment in the media both in this country and around the world
Too much of that reporting has been inaccurate – though that, as I shall explain, is not entirely the fault of the media – and some of it has been tendentious, to use no stronger word. It is accordingly both necessary and desirable that I set out the background before turning to address the one application that is currently before me.
He identified four principal themes running through the media coverage of the event.
- Criticisms of, the various orders made by the English courts, much of which has been “strident” and inaccurate, under such headlines as ‘Operate on this mother so that we can take her baby’, ‘Woman’s baby taken from womb by social services’ and ‘Social workers took baby into care after forcing her mother to have a Caesarean’.
- Reports of what is being said by and interviews with the mother and, more recently, her own father.
- Comments about and criticisms of the lack of transparency in the court process.
- “The fourth, though largely confined to legal commentators on the blogosphere, relates to criticisms, some expressed in strong terms, of the way in which the case has been reported by the media.”
(this is the first judicial reference to the legal “blogosphere” and I daresay he had Adam Wagner’s strong “Lessons learned” post in mind).
Turning to the application before him, the President set out the competing interests between which he would have to strike a balance.
The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.
The mother had an “equally obvious and compelling” claim to be allowed to tell her story to the world and air her complaints about her experience of the family justice system. On the other hand, there were the privacy interests of the child to be considered; in particular, the sensitive process of adoption meant that welfare demanded that neither she nor her carers should be identified. But this did not mean that any injunction were necessary to protect the identity of the mother or the father. The injunction granted by the judge restraining identification of P emphatically does not prevent the mother identifying herself, as indeed she has already done, by her first and maiden names.
Then the President turned to matters of more general application. He asks, first,
How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?
and continues with his second point, which was, if anything, “more important”:
This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published.
All lawyers, whether practitioners or academics, who have had to deal with the horrible alphabet soup of child cases and other similarly anonymised judgments must surely welcome this declaration. Unless you have the exact citation, they are impossible to search, even on excellent sites like BAIILI, and the monotonous and repetitive labelling makes them very difficult to write about in any enlightening comparative way.
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Can it be denied that timely publication of the 2012 judgment might well have saved a lot of the ill-informed comment?
How does our jurisprudence suppose that secret courts and never-published judgments, about parents with pseudonyms like A and B, of children C and D, are what the modern British understanding of justice and human rights nowadays demands? Lest otherwise we fail to protect a supposed right to “privacy” of young “C” and “D”? Is that legal fiction, the right to privacy of even a newborn babe, what mesmerised our Parliamentarians into such obvious folly?
What harm, I ask, did our legislature imagine, when they sacrificed open justice upon the altar of the false god of children’s “privacy”? What harm did they fear might one day befall an adopted child, or his adoptive parents for that matter, when the adopted child discovered, once he was old enough to search the internet and understand the convoluted sophistry of law reports, that his natural parents hadn’t rejected him a decade or two earlier after all, as he had been misinformed, but had fought all the way to Strasbourg, for his UNDRC right for them to bring him up, wasting their life savings on this pipe dream?
Thus informed of court proceedings about *him*, concluded before he’d even learnt to say words like “mum” and “dad”, might he not fall in love with his real parents, for loving him that much? Might this new love flood his soul and affirm his worth, without his loving any less his adoptive parents, the only so-called “parents” he had ever known, until he discovered Google?
How did our MPs and peers imagine that this glorious discovery, how loved this adopted child had been before he could use cutlery, that even public authorities joined in the tug-of-love whose victory fixed his early years, might belatedly harm this child, once he was grown-up enough to make the glorious discovery for himself?
Gagged Dad
Sorry to be pedantic, but it’s not Munby J or even Munby LJ. It’s Sir James Munby P.
IMPORTANT POINTS FOLLOWING THE MUNBY JUDGEMENT !
1:- L.J Munby states that journalists cannot be totally blamed for innacurate reporting if the facts are not made public in the first place.
2:-Booker was criticised for saying the mother was sectioned following a panic attack because it implied that was the only thing wrong with her .The reporting was accurate the implcations were not ,but were only conclusions drawn by others.
3:- Munby himself remarked that no appeals had been made against any of the judgements .This implied that the mother was satisfied with them when in fact the delay is because legal aid has still not been made available.This shows that no person reporting accurate facts should be blamed if others draw erroneous implicatons from them.
4:-Essex Council made a statement on this case which was not only innaccurate but more importantly PROVES BY THEIR SO DOING THAT SOCIAL SERVICES CAN COMMENT ON INDIVIDUAL CASES BUT JUST CHOOSE NOT TO !!
5:-Essex Council stated that the Italian courts agreed that the child should remain in uk.This is manifestly false as the court in Florence referred the matter to the high court in Rome which concluded that the child should be returned to Italy.
6:- The statement by EssexCouncil and also the Mostyn judgement both ignored the fact that the hospital doctors and their psychiatrist recommended that mother and baby should not be separated.This gave the false impression that all concerned were agreed on the interim care order and subsequent placement for adoption.
7:-The Munby judgement merely forbade any one from publishing the names of the mother and child (though permitting her maiden name) or information such as addresses that could lead to their identification.No newspapers had expressed any intentions of doing this in any case.
8:-L.J.Munby thoroughly endorses the campaigners for reforms of the family courts and the court of protection in para 45 of his judgement as follows:-
. “This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges”