Sunderland City Council has withdrawn an application for permission to remove a newborn baby without telling the mother beforehand.
In the Matter of DM concerned a “vulnerable” couple. Sitting in the High Court, Mr Justice Hayden declared that:
“The facts of the case are very sad, perhaps the more so because they are not unique”.
The mother in question had already given birth no less than eight times, including a set of twins, and on all of those occasions the infants was subsequently taken into care. Seven were adopted, while one child was placed with a carer from the woman’s extended family.
The mother had gone into hiding shortly before giving birth to the twins, and this had placed her health at significant risk .
In addition, the judge noted that:
“Time and again, a wide range of professionals has concluded that neither together nor separately is this couple able to provide a sufficiently safe or nurturing environment for a baby or child in their care, even if provided with extensive support.”
Nevertheless, he noted:
“The fact that each wishes to be a parent is all too desperately clear.”
Doctors treating the woman decided that her ninth pregnancy should be induced. Her local authority were concerned that she might disappear again if she heard of this, placing both her own and the new baby’s health at risk.
Sunderland City Council therefore applied for ‘declaratory relief’ (a prior declaration) that it would be legal to intervene in the birth, separating mother and baby and possibly removing the infant altogether, and to do so without the mother being informed of their plans.
The council’s desire to protect the health of the mother and baby was “laudable”, said Mr Justice Hayden, but it also had a “paternalistic complexion”.
The Mental Capacity Act 2005 protects the welfare of vulnerable people, he continued, but also presumes capacity, and firm evidence is required to change this presumption. It is, the judge noted, “vigorous to protect the fundamental principle of personal autonomy.”
Local authorities must operate from a legal starting point in which they are required to consult parents on all decisions regarding care of their children. The judge also referred to the fact that a foetus has no rights of its own under English law, until it is born and begins an existence separate to its mother.
He concluded:
“I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived.”
Mr Justice Hayden adjourned the case from a Friday to the following Monday to allow the Council to reflect on its application. When Monday arrived, it duly sought permission to withdraw the application and this was immediately granted immediately.
Read the full judgement here.
The ruling echoes a judgement reported in June, in which a couple with learning difficulties were allowed to appeal against plans to take their then two year child into care on the grounds that the move would breach their human rights.
Photo by Janine via Flickr
