(Family Division; Munby J; 4 March 2009)
Care and placement orders had been made in relation to the mother's elder child. The mother was pregnant. During a session of supervised contact with the elder child the mother used a cloth to blindfold and gag the child, pinning her to the floor and threatening her with a knife. The two supervising workers had to call the police to resolve the situation. The mother was now in prison, in a very distressed state, and had seemingly attempted suicide on one occasion. The social worker reported that the mother considered that her children 'would be better off dead rather than be in the care of the local authority'. The local authority considered that the mother's unborn child must be removed from the mother at birth, but feared that if this was communicated this to mother, in compliance with the obligation under European Convention on Human Rights, Art 8 to involve the mother in the decision-making process, the mother would harm the baby and herself in the minutes after birth. The local authority sought anticipatory declaratory relief as to whether it would be lawful not to tell the mother about the proposed removal of the child at birth, notwithstanding her Art 8 rights.
Because the child was unborn, the court had no jurisdiction to make either a care or wardship order in respect of the child. However, that did not prevent the court from exercising jurisdiction under the general law to declare the conduct of the local authority either compliant or non-complaint with Art 8.The key question for the court was whether the local authority's proposed action was justified by the 'overriding necessity of interests of child' or by something which was 'essential to secure the child's safety'. In the highly unusual circumstances of this case, the very exceptional step of not engaging the parents fully and frankly in the pre-birth planning process was entirely justified.