A few weeks ago we read some dramatic criticisms of the courts in the case of an Italian mother and Essex County Council. One headline said “Women’s baby taken from womb by Social Services.” There was supposedly a “secret” hearing in the Court of Protection which led to this treatment of the Italian mother.
Shortly before Christmas the President of the Family Division commented on this when he dealt with an application by Essex County Council for a Reporting Restriction Order. While at the same time suggesting that it is the responsibility of the press to get the facts right, he said that the media can hardly be blamed for inaccuracy if for whatever reason none of the relevant information has been made public. He said the case must “surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes… as to transparency.”
But first, the facts as he laid them out.
The Italian mother came on a short visit to England in 2012. She was pregnant at the time. Following a mental health episode she was compulsorily detained pursuant to the Mental Health Act, presumably for her own safety. Because she was about to give birth, and there were complications the NHS Trust – note, not Essex County Council social workers – made an urgent application for the Court of Protection to authorise a Caesarean section, because the mother did not have the mental capacity at that time to make a decision in the best interests of herself and the baby. The baby was born by caesarean section and the next day Essex County Council began care proceedings, again presumably because the mother was not in a mental state to care for the baby. Council social workers supervised some contact with the mother, who returned to Italy about two months after the birth. A few months after that Essex County Court asked the Court for leave to place the baby for adoption, and the court granted that in October 2013. The mother attended at least one hearing in England, and never appealed any of the Orders. Instead, she took various proceedings in the Italian courts, but unsurprisingly nothing resulted from those.
The judge, Sir James Munby, pointed out that logically there were three particular competing interests that he had to consider : –
- The public has an interest in knowing and discussing what has been done in this case. He said it was hard to imagine a case “which more obviously and compellingly requires the public debate to be free and unrestrictive.”
- The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. In free society, parents who feel aggrieved at the judicial system should be free to complain as they see fit. The implication is that reporting restrictions are not intended to protect the feelings of judges.
- The baby, in its new adopted home has a compelling claim to privacy and anonymity.
Sir James concluded that the continuing anonymisation of the child was an overwhelming argument and his or her anonymity should be protected. Beyond that, he would not go. If the mother wished to identify herself, that was entirely her decision and the public indeed had an interest in knowing and discussing what had been done. As Sir James said, “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?”