Anonymity in the courts: Part 1, the “forced Caeserean”
18 December 2013
AA, Re (Including: note by Mr Justice Mostyn) 4 December 2013  EWHC B24 (COP) – read note and judgment
In the matter of P (a child) 13 December 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  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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