There has been mass media recently over the Court of Protection judgment in the case of Re: P (A Child), heard by HHJ Newton.
The facts of the case are that the mother, an Italian national, has a history of mental health problems, and during her pregnancy with P, she was failing to take her medication, leading to very intrusive paranoid delusions. The mother was previously detained under s3 of the Mental Health Act 1983 during her pregnancy. S3 allows involuntary admission of a person to hospital for treatment for mental health conditions, which is considered to be necessary for that person’s safety, or for the protection of others.
The Local Authority previously issued proceedings upon the birth of P, and judgment was given on 23rd August 2012 for the birth to be induced by way of a caesarean section, following fears for the welfare of the unborn child. From birth, P has been subject to an Interim Care Order, which has been repeatedly renewed. The legal framework within this was based was s31 Children Act 1989, the test being that at the time of the Local Authority’s application, P was ‘suffering, or was likely to suffer significant harm’, and this threshold was met due to the mother’s very severe ill health at that time.
The mother has since returned to Italy and her condition has significantly improved, with her now compliant with her medication and reported to be ‘extremely well’. She told the Court that she has now accepted her condition and that her daughter had ‘saved her’, albeit under tragic circumstances. The mother came back to the UK in order to contend the proceedings. The father of P is a Senegalese international, currently residing in and unable to leave Italy.
The proceedings in question relate to the Local Authority’s contention that the Court ought to make a Care and consequent Placement Order, leading to P being put up for adoption, and therefore remaining in the UK, separated from her Italian-resident family.
The Court was therefore faced with an extremely difficult decision; whether P could be placed with her mother and therefore return to reside in Italy with her family, cared for to a satisfactory standard, or whether she should in fact stay in the UK and be adopted, remaining in the care of the Local Authority.
The Court gave great weight and consideration to the improved health and condition of the mother and her extremely strong wishes for her baby to return to her and for her to raise her child. The mother is reported to have begged the Court not to make the Care and Placement Orders, insisting that P’s future is in Italy with her family (P also has two half-sisters and grandparents in Italy). The court gave deep consideration to this.
However, HHJ Newton concluded that ‘I am sorry to say it but the way in which the case has unfurled is that I am not able to say that P can return to the care of her mother today’. He went on to say that he was unable to ‘accede to the mother’s wishes’, even though he understands ‘not just the strength of the feeling that she has, but… it is rare to have is articulated in such a forceful and coherent form’. The Court therefore made the Care Order and Placement Order, attaching weight to the fact that P’s welfare throughout her life is the ‘paramount’ consideration’ and that the priority was to ‘identify and secure a permanent, predictable and stable home for P’.
The decision has been however demonised in the media, The Guardian, publishing headlines that the mother is ‘suffering like an animal’ and The Independent brandishing it ‘the stuff of nightmares’.
However, the decision of the Court was to decide what was in P’s best interests, not the best interests of the mother and her family. The Court obviously believed there to be a risk to P should she be allowed to return to Italy, noting in the judgment that ‘there have been periods in the past when she has taken medication only subsequently to lapse’, and that ‘only time will tell’ whether the mother will remain compliant with her medication. As the Court was not able to say that with any certainty, it was left with no option but to make the Orders which it did.
The Court did appreciate that the adoption placement ‘represents a drastic curtailment of the rights of both the parents and of P under Article 8 of the ECHR and that can only be justified by a pressing concern for her welfare’.
Therefore although the intervention of the Court at first instance in ordering the caesarean section, and then by ordering P to remain under the care of the Local Authority and be placed for adoption in the UK, appear to be somewhat draconian actions to take, the decisions of the Court must nevertheless be respected in a case such as this where a child’s welfare is at stake, and the risk to the child must be given greater weight over and above the wishes of the mother.
By Sophie Maloney, human rights law & civil liberties
The Court of Protection is a specialist Court safeguarding the rights of those who lack mental capacity or are vulnerable in making decisions. If you require advice in respect of any issues which may require the Court of Protection to intervene, then our team is able to provide specialist legal advice, representation and guidance through this process.