Courts consider power of social services to remove children at birth

In a decision in the high court in April 2003 Mr Justice Munby
ruled that a local authority could remove a child at birth, but in
the particular case, they had to allow the parents daily contact
and let the mother breastfeed. The mother had three other children
in care and the father had been convicted of unlawful sexual
intercourse with underage girls, and accused of domestic violence
by previous partners.

This decision is consistent and can be contrasted with
the decision of the European Court of Human Rights in re P, C and S
in July 2002.

In that case the European court held that the mutual enjoyment
by parent and child of each other’s company constituted a
fundamental element of family life, and domestic measures hindering
such enjoyment amounted to an interference with the right to family
life protected by article 8 of the European Convention on Human
Rights. Any such interference constituted a violation of the
article unless it was “in accordance with the law”,
pursued a legitimate aim and could be regarded as “necessary
in a democratic society”.

The margin of appreciation to be accorded to the competent
national authorities varied in the light of the nature of the
issues and the seriousness of the interests at stake. While the
authorities enjoyed a wide margin of appreciation in assessing the
necessity of taking a child into care, in particular where an
emergency situation arises, the curt must still be satisfied in the
circumstances of the case that there existed circumstances
justifying the removal of the child. The respondent sate had to
establish that a careful assessment of the impact of the proposed
care measure on the parents and the child, as well as of the
possible alternatives to taking the child into public care, was
carried out prior to implementation of a care measure.

The taking of a new-born baby into public care at the moment of
its birth was an extremely harsh measure. There must be
extraordinarily compelling reasons before a baby can be physically
removed from its mother, against her will, immediately after birth
as a consequence of a procedure in which neither she nor her
partner has been involved.

Following any removal into care, a stricter scrutiny is called
for in respect of any further limitations by the authorities, for
example on parental rights of access, as such further restrictions
entail the danger that the family relations between the parents and
a young child are effectively curtailed.
Questions of emergency care measures are, by their nature, decided
on a highly provisional basis and on an assessment of risk to the
child reached on the basis of the information, inevitably
incomplete, available at the time. The European court found that
there were relevant and sufficient reasons for this measure, in
particular the fact that the mother had been convicted of harming
her son and had been found by an expert to suffer from a syndrome
which manifested itself in exaggerating and fabricating illness in
a child, with consequent significant physical and psychological
damage to the child.

The European court considered that the decision to obtain the
emergency protection order could be regarded as having been
necessary in a democratic society to safeguard the health and
rights of the child. The local authority had to be able to take
appropriate steps to ensure that no harm came to the baby and, at
the very least, to take the legal power to prevent the removal of
the baby with a view to foiling the local authority’s actions, and
thereby placing the baby at risk.
The court criticised the manner of implementation of the order,
namely, the steps taken under the authority of the order. Removal
at birth was a traumatic step for the mother and placed her own
physical and mental health under a strain. It deprived the new-born
baby of close contact with its birth mother and of the advantages
of breastfeeding. It deprived the father of being close to his
daughter after the birth.

The European court could not see why it was not at all possible
for the baby to remain in the hospital and to spend at least some
time with her mother under supervision. Even on the assumption that
she might be a risk to the baby, her capacity and opportunity for
causing harm immediately after the birth had to be regarded as
limited, considerably more limited than once she was
discharged.

There was in the present case no suspicion of life-threatening
conduct. That made the risk to be guarded against more manageable.
In that respect the court concluded that, although it was
reasonable for the order for emergency protection to have been
made, the actual removal of the child from her mother shortly after
birth was not supported by relevant and sufficient reasons. Removal
at the time it was carried out could not be regarded as having been
necessary in a democratic society for the purpose of safeguarding
the child. In that respect, there had been a breach of the parents’
rights under article 8 of the convention.

Richard White
White and Sherwin Solicitors