Child taken from womb by social services: it's not always wrong
We must not get distracted by vilifying the Court of Protection when children’s rights are at stake. The system needs to be respected and supported, argues solicitor-advocate Sophie Khan
The case has developed into an international legal row, with lawyers for the woman describing it as “unprecedented” Photo: ALAMY Photo: Alamy
At first glance the story
that a woman has been sedated and forced to have a caesarean section is
shocking. It has been reported that this is “unprecedented” by the
woman’s lawyer and “highly unusual” by an expert on social care proceedings,
but why would the Court of Protection grant such an order to Essex Council?
There must be more to this story. There must be a reason why the Court
believed that there was a risk to the unborn child.
The woman,
an Italian national, who was in Britain on a work trip suffered a mental
breakdown, was taken to a psychiatric hospital and sectioned under
the Mental Health Act. The woman remained in hospital and five weeks later
underwent a caesarean section to remove her baby. The
baby was taken into care and is now to be adopted.
Based on the facts of the case the Court believed there was a risk to the
unborn child and had to take steps to protect the child from harm. Such
draconian steps are only taken by the Court if there is no other
alternative, especially when it comes to children. As a society we must act
in the best interest of the child and the Court of Protection, although many
of you may not agree with its closed proceedings, is there to ensure that
this interest is protected.
The right of anonymity is fundamental to child protection and closed
proceedings are necessary when the interest of the child is paramount. Last
week, Peaches
Geldof inadvertently disclosed the identities of the co-defendants in the
Ian Watkins case which could still lead to the identification of the
child victims. The inadvertent disclosure shows how easy it is to forget
about the right of the child if we get distracted by other issues.
The same can be said about this case.
The mother of the child has the right to challenge the adoption process and put forward her case but that does not mean the forced caesarean section she underwent was unnecessary. The steps taken to date by Essex Council have been to promote the welfare of the child and it will be for the Court to decide whether the mother can be reunited with her baby. It is not for us or for Parliament to decide. The jurisdiction lies with the Courts. We must not get distracted by vilifying the “court protection system” when children’s rights are at stake. The system needs to be respected and supported.
The suggestion by John Hemming MP, who chairs the Public Family Law Reform Coordinating Campaign, for greater openness in court proceedings involving family matters, is of concern as there is no public interest argument that can be made to allow the general public and the media to hear or report on such cases. If there was a public interest to have heard the case in open then it would be for the judge presiding over the case to make such an Order. The judge would have interpreted and applied the law that Parliament has made. The law protects children’s rights and any steps to weaken that protection should be resisted, even by Mr Hemming.
John Hemming MP
Sensationalising the story does not take into account the risk faced by the unborn child if the Court of Protection had not made such an Order. You may not agree with the decision by the Court but that does mean the decision was wrong.
The Court weighted up the competing rights of the mother and the unborn child and came to its decision that a forced caesarean section was in the best interest of the child. This is unconventional, unprecedented and highly unusual but within the remit of the Court. The mother had been sectioned under the Mental Health Act and after five weeks still did not have the capacity to instruct a lawyer. The Court had to make the Order.
We must not forget that hard decisions need to be made to protect the welfare of the vulnerable. Criticising the judgment is unwarranted and even dangerous as it may diminish the authority of the Court. If the Court of Protection was inhibited from making hard decisions children’s lives could be put at risk. That is the real story.
Sophie Khan is a solicitor-advocate specialising in actions against the police and public authorities and legal director of @policeactioncen. She writes on legal and socio-political subjects and campaigns against the use of Tasers.
http://fw.to/aJm5cRL
The mother of the child has the right to challenge the adoption process and put forward her case but that does not mean the forced caesarean section she underwent was unnecessary. The steps taken to date by Essex Council have been to promote the welfare of the child and it will be for the Court to decide whether the mother can be reunited with her baby. It is not for us or for Parliament to decide. The jurisdiction lies with the Courts. We must not get distracted by vilifying the “court protection system” when children’s rights are at stake. The system needs to be respected and supported.
The suggestion by John Hemming MP, who chairs the Public Family Law Reform Coordinating Campaign, for greater openness in court proceedings involving family matters, is of concern as there is no public interest argument that can be made to allow the general public and the media to hear or report on such cases. If there was a public interest to have heard the case in open then it would be for the judge presiding over the case to make such an Order. The judge would have interpreted and applied the law that Parliament has made. The law protects children’s rights and any steps to weaken that protection should be resisted, even by Mr Hemming.
John Hemming MP
Sensationalising the story does not take into account the risk faced by the unborn child if the Court of Protection had not made such an Order. You may not agree with the decision by the Court but that does mean the decision was wrong.
The Court weighted up the competing rights of the mother and the unborn child and came to its decision that a forced caesarean section was in the best interest of the child. This is unconventional, unprecedented and highly unusual but within the remit of the Court. The mother had been sectioned under the Mental Health Act and after five weeks still did not have the capacity to instruct a lawyer. The Court had to make the Order.
We must not forget that hard decisions need to be made to protect the welfare of the vulnerable. Criticising the judgment is unwarranted and even dangerous as it may diminish the authority of the Court. If the Court of Protection was inhibited from making hard decisions children’s lives could be put at risk. That is the real story.
Sophie Khan is a solicitor-advocate specialising in actions against the police and public authorities and legal director of @policeactioncen. She writes on legal and socio-political subjects and campaigns against the use of Tasers.
http://fw.to/aJm5cRL
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