Hobson’s choice – voluntary or compulsory removal of a child?

CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012)

By an extraordinary coincidence, it was only this week that I mentioned in a blog the case which came to national tabloid prominence four years ago as “the Nottingham baby case”. Extraordinary that I have cause to review it again, so soon, in considering a judgement given on Monday; and coincidence that @suesspiciousmin covered both cases and indeed his blog drew my attention to the case which prompts me to drag it up for the second time. His blog on yesterday’s judgement is here: http://suesspiciousminds.com/2012/07/31/i-need-two-volunteers-you-and-you-how-voluntary-is-voluntary-accommodation/

But, having dug out the Nottingham baby case so recently, I had to find myself reflecting that the issues in this week’s case have been aired before, and indeed to remarkably similar effect.

Hold on a minute, I hear you saying, I have no idea what you are talking about. What is the Nottingham baby case, and what happened this week? OK, one at a time.

The Nottingham baby case By an extraordinary coincidence, in late January 2008 a judicial review by a care leaver of her pathway plan was listed to be heard a few hours after she had given birth early, and her baby had been removed. Thus very publicly, in judicial review rather than family proceedings, the court was asked to, and did, order the baby’s return in the absence of any court order authorising his removal.

A full hearing of the issues took place two months later, and there, the local authority argued that, as the mother knew of the plan to remove her child at birth and had not objected, she should be treated as having consented to the baby being accommodated under section 20. The judgement G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) robustly rejected this argument.

I analysed the case at the time, in an article in Professional Social Work magazine, which you can read here: http://www.celticknot.org.uk/publications/canishouldimusti.pdf

What happened this week? An expectant mother who had had previous children removed for adoption was subject to a plan for the same for her fourth. When the birth came there were life threatening complications, and among other things she received morphine during and after birth. The authority sought to accommodate the child voluntarily but she did not consent. She was asked again over the course of the day until later in the day, while dosed with morphine, she agreed and the child was removed. She challenged the lawfulness of the removal and judgement was given yesterday in CA (A Baby), Re [2012] EWHC 2190 (Fam) (30 July 2012).

This week’s judgement records an agreement to pay human rights act damages for the interference with her family life, and sets out forcefully observations on the use of section 20 in these circumstances. The court was not referred to the Nottingham baby case, possibly because it was a judicial review rather than a family case.

The issues in common

Both cases:

• concerned the removal of a child at birth in accordance with a birth plan;
• used voluntary accommodation under section 20 as the vehicle for achieving that removal;
• involved challenges to whether consent was properly obtained;
• asserted breaches of the Article 8 right to respect for private and family life;

Lessons on consent – a reminder

The Nottingham baby case resulted in a robust judgement which distinguished acquiescence from consent:

To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger… Submission in the face of asserted State authority is not the same as consent. [paragraphs 55, 61]

This week’s judgement also distinguishes acquiescence from consent [paragraph 36].

Both cases also serve up reminders that the immediate aftermath of birth is not a good time for proper informed consent [Nottingham case at paragraphs 52, 57; this week’s case at paragraph 38].

Both cases also remind us that consent which is obtained in circumstances where the mother believes they have no choice is not proper informed consent either [Nottingham case at paragraph 55; this week’s case at paragraph 35].

Thus far, I am happy. Disappointed, perhaps, that the assertion of non-existent authority by an agent of the State is still being used to procure the removal of children with neither proper consent nor the sanction of a court. But if that is the case, then this is a timely reminder to get it right.

Lessons on capacity – a difference

Yesterday’s case raises the issue of capacity and consent. Effectively, it reminds us that you cannot consent without the capacity to consent. Since the European Court in H.L. v. THE UNITED KINGDOM – 45508/99 [2004] ECHR 471 (5 October 2004) holds that the absence of objection cannot be equated with consent, and those who for reasons of capacity cannot object still need an effective remedy, that judgement seems to draw together the Nottingham baby case and yesterday’s case. One may have concerned a capacitous individual not objecting and the other a non-capacitous one, but the principles which hold that there is actually no consent actually apply to both.

The difference is that in the absence of capacity, in effect there must be a court order, consent being impossible.

Lessons on choice – a problem

But there is, it seems to me, a problem with yesterday’s judgement. The Nottingham judgement explicitly recognises that section 20 consent is at least possible to authorise the removal of a child at birth for adoption – and even cites a precedent – X County Council v C [2007] EWHC 1771 (Fam) (20 July 2007).

Yesterday’s judgement seems to go further. It comes very close to saying that section 20 should not be used in circumstances where a court order could not immediately be obtained.

I am troubled by an issue that brings us up to the furthest reaches of the issues surrounding consent and choice, while at the same time engaging the very nature of social work:

If the only choice you have been given is to hand over your child voluntarily or face an application for a court order, is that a genuine choice? And if you have no real choice, is it effectively unlawful compulsion?

At first blush, a rights-oriented lawyer will deplore the effective compulsion that is involved in the Hobson’s choice between voluntary and involuntary removal. But I also have concerns to see my other profession, social work, engaging in more co-operative practice. Indeed, I think the original ethos of the Children Act – and indeed the statutory guidance accompanying it – assumed that social workers would be trying to work with, rather than against, families even where there were child protection concerns. And I think that such an approach would enhance social work’s standing also.

These concerns lead me to believe that voluntary care and persuasion really ought to be tools in the social worker’s toolbox. And it was with some concern, therefore, that I read @suesspiciousmin‘s analysis of this case which includes the useful summary that the court entered

into a discussion of whether a Local Authority can properly invite a parent to give s20 consent if the circumstances are not such that a Court would authorise separation, before concluding that they cannot.

That, I do not like. I think the more powerful argument is that this week’s case makes persuasion to the use of section 20 more fraught with difficulties and therefore less likely to be attempted, rather than that it outlaws it. After all, the judge does observe,

there will be cases where it is perfectly proper to seek agreement to immediate post-birth accommodation… secondly where a parent has always accepted that the child must be removed and has consistently expressed a willingness to consent (but not of course just to acquiesce)… the right to exercise parental responsibility by requesting accommodation under Section 20 and the local authority’s powers of response under Section 20(4) must be respected  [paragraph 36].

Even so, dissuasion of persuasion (!) is not necessarily helpful. Of course, using section 20 properly means:

• never pretending that you could get a court order if you couldn’t;
• always making clear that there are remedies, and parents have access to remedies to test the lawfulness of the authority’s actions and proposed actions;
• not using a failure to co-operate voluntarily against a parent (this, of course, is particularly pernicious, as explained in this blog)

Surely, if used properly, invitations to section 20 consent should result in:

• some parents giving informed consent, even though they fully understand that they need not and that they could win an argument that the care threshold was not met – because they are persuaded to work co-operatively with the authority in the interests of a child in need;
• others withholding consent, and the child’s being made the subject of an Order, without reliance on the parent’s withholding of consent – because we accept that it is their right to challenge the lawfulness of our actions and we don’t hold that against them;
• still others withholding consent and the child’s not being made subject to an Order – because, let’s face it, if the threshold isn’t met then we cannot and should not be using compulsion, we shouldn’t use compulsion simply in the best interests of a child, only to protect from significant harm.

Precluding the possibility of outcome 1 is not good news in my book. Outcome 3 is consistent with the rights of all involved. My fear is, that if section 20 is confined to cases where the significant harm threshold can be made out,

• this is bad for children, because it removes a potential tool in the toolbox of social workers to help children in need, and reinforces the notion of ‘significant harm or nothing’ which plagues work with children and families;
• it is bad for parents, who cannot accept support without the probable stigma of being labelled as bad parents owing to the threshold test being met;
• and it is bad for social work, reinforcing confrontation because the very fact of social work involvement equates with compulsion and is confined to the more serious cases.

Hobson’s choice? No, the choice between voluntary and compulsory accommodation is a real choice that can benefit us all.

P.S. I have mentioned and recommended two other blog posts on the use of section 20:

‘And for tonight’s rant‘ from @familoo at http://pinktape.co.uk/ (which makes a strong case for the court’s supervision); and

‘How ‘voluntary’ is voluntary accommodation?‘ from @suesspiciousmin at http://suesspiciousminds.com/.

Those two blogsites have been very sweetly courting each other this week – or whatever it is that blogsites do when they contemplate partnership – blush, apparently – but even from my gooseberry’s perspective, I can heartily recommend both, as forming part of my regular and essential reading, and being incisive and quick off the mark in commentary!

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.