Dr Sara Fovargue
This is the second of two case notes concerning the court ordered caesarean of AA and the removal of her child, P, following delivery. Part I was published on 15 January 2014, and is available here.
The facts of the adoption case
Case transcript: Re P  EW Misc 20 (CC)
P was born on 24 August 2012 in England, while her mother (known in this case as A, but in the caesarean decision as AA) was in the country for work purposes. Both A and B (P’s father) live in Italy; she is an Italian citizen, he is not. P was subject to an interim care order from birth, and this was continually renewed under section 38 of the Children Act (CA) 1989.
A has had mental health problems since 2007 including admissions to psychiatric hospitals in Italy, of which at least two were compulsory. She had two daughters (C and D), and the Italian social services had investigated their welfare because of A’s condition. She wanted to care for C and D but was unable to do so. Since early 2011 C and D had been looked after by their grandmother and, because of her condition, contact between them and A had been limited both by the Italian court and their grandmother. When A did not take her medication she had paranoid delusions, and C had experienced her mother being unwell and was affected by what she had witnessed.
While in England in August 2012 A was compulsorily detained under section 3 of the Mental Health Act 1983 (‘[s]he was profoundly unwell’ ), and was also declared to lack the capacity to consent to medical treatment, under section 2(1) of the Mental Capacity Act 2005. She delivered P following a court ordered caesarean section. During October 2012 the doctors treating A suggested that she had regained capacity, and she asked to return to Italy. P remained in England subject to an interim care order.
In January 2013 Essex County Council (the CC) applied for a care order under section 31 of the CA 1989, and a placement order, under section 22 of the Adoption and Children Act (ACA) 2002. The application was contested by both A and B, and the final hearing was held on 1 February 2013.
Since her return to Italy in October 2012, A had complied with her medication regime, and her mental health improved so that she was able to give evidence to the court in February 2013. His Honour Judge Newton said that AA was ‘clear and articulate’, ‘more so than most people I hear from the witness box where English is their first language’ .
AA opposed the CC’s application, and gave evidence that she felt well, and that P had ‘saved her’ as her birth caused her to accept her bipolar condition and the need to adhere to her medication regime .
A proposed that P should be returned to her to live in Italy, but that P should remain in foster care for up to 12 months in order that A could show that she was able to maintain her medication and a stable life. She had a secure job, accommodation, and her family’s support. A did not want to lose her daughter forever, she did not believe it was necessary for P to be adopted, and believed that as long as she took her medication she could provide for P.
P’s Guardian’s evidence
P’s Guardian acknowledged that A was very different in February 2013 from how she had presented in October 2012, but she was concerned about the timescale proposed by A and how committed she was to taking her medication in the light of previous lapses. The Guardian restated the evidence that ‘a child’s best chances are by being in a secure placement by the time he or she is nine months old, whether that be within the birth family or otherwise’ .
For a care order to be made the threshold criteria in section 31 of the CA 1989 must be met, with the CC establishing the criteria on the balance of probabilities. The child’s welfare is the court’s paramount consideration, section 1, and the court must have regard to the welfare checklist in section 1 (3), as well as the principle of “no delay”, section 1 (2).
With regards to the placement order, under section 1 (2) of the ACA 2002 the child’s welfare throughout her life is the court’s paramount consideration and, under section 52, the parents’ consent to the order can be dispensed with by the court if the welfare of the child requires this.
His Honour Judge Newton decided that the threshold criteria for a care order had been met; the question was thus whether P could be placed with A or her wider family ‘and be cared for to a satisfactory and predictable standard within an appropriate timescale’ , or whether the CC’s care plan should be followed .
He stated that ‘the best place for any child is within her family of origin and especially where she is of an unusual racial mix’, unless there are ‘clear welfare grounds to demand or prefer an alternative’ (. In this case, he did not doubt that A was taking her medication regularly, and ‘her deep belief that her daughter should and could be properly placed with her’ . The court had to balance the evidence; that as A currently is and if her status is maintained ‘she may well be able to offer a proper home, with the vicissitudes faced by adopters’ .
The CC had identified three possible adoptive families, but His Honour held that a national and not merely a regional search of registers was required in order to achieve an appropriate racial match. P could not be returned to A on the day of the hearing, nor could anyone in the wider family (including B) look after her at that point. It was more productive for a placement for P to be secured outside and not within her birth family, given A’s timeframe of P being returned to her in Italy in 12 months time and the CC’s desire to permanently place P before she was nine months old (in May 2013). A full care order was thus made.
With regards to a placement order, ‘the priority is to identify and secure a permanent, predictable and stable home for P’ . This could best be achieved via adoption which is ‘the best course’ , and A and B’s consent would be dispensed with under section 52 of the 2002 Act.
- A did not challenge the care or placement order in the Court of Appeal, but she did take various proceedings in the Italian courts regarding P (starting in May 2013 and ending in September 2013).
- The CC applied for leave to place P for adoption, which was granted in October 2013. P was then placed with prospective adopters, and remains with them.
- Neither this judgment, nor that in Re AA, were published until December 2013, following media reports about the case. On 3 December 2013 Sir James Munby, President of the Family Division of the High Court, ordered that he should hear any further application in respect of P or A.
- Despite the outrage in the media about the “forced” nature of P’s “adoption”, P has not yet been adopted. His Honour Judge Newton merely ordered that P could be placed for adoption as this would secure her welfare; it was in P’s best interests to be adopted outside of and not within her birth family. A and B’s opposition to the CC’s application is not unusual; nor is the judge’s dismissal of the need for their consent. It is the court’s responsibility to determine whether it is in the best interests of the child concerned to not remain within the birth family, despite the wishes of the parents.
- His Honour Judge Newton was rightly critical of the fact that A’s understandable desire to return to Italy in October 2012 placed her at a significant disadvantage with regards to P’s proposed adoption. He said that ‘she was despatched (indeed escorted) from the UK with undue haste simply because she wished to go back to Italy’ . His Honour had been told that at that point A was in good health, but ‘frankly nothing could have been further from the truth’ as when she arrived in Italy she was in ‘a very poor state’ . Rather than being returned home A should have been helped to participate in the proceedings in England, because ‘by going to Italy any realistic prospect of P returning to her care was diminished substantially’ . It was thus ‘a most ill-advised thing to have occurred’ . It is this aspect of this case which should have been highlighted by the media. A was effectively and unfairly sidelined at an early stage in the process.
- On the facts available to us, it is difficult to see the alternatives open to the court. This was not a “forced” adoption, but one where the best interests of P were considered to be met by placement for adoption in infancy. There is no evidence within the judgment that alternative carers within her birth family were forthcoming, and the CC sought to give P permanence sooner rather than later. While it is understandable that A wanted more time to “prove” herself and her stability, this was not, on balance, best for P. In a time of open adoption, there is no reason why P could not maintain contact with her birth family, and ‘know that her mother very much wished to parent her and bring her up’, but also come to understand that with her best interests in mind ‘a predictable home could only be secured by way of adoption’ .
Sara Fovargue is a Senior Lecturer in Law at Lancaster. She researches in the areas of health care law and ethics, and family law. She has written widely in the field of health care law and ethics, including Xenotransplantation and Risk: Regulating A Developing Biotechnology.
You can find out more about Sara’s research at: http://www.lancaster.ac.uk/fass/law/profiles/Sara-Fovargue