In this case Mostyn J. had at least four options available:
1. To consider the local authority’s request for a police protection order under s.46 Children Act. This would allow the police to remove the baby from AA’s care immediately after the birth.
2. To suggest the local authority apply under s.38 Children Act after the birth seeking an interim care order for the child. This would allow a hearing where AA’s interests could be represented by the Official Solicitor and the child’s welfare could be discussed.
3. To make an order under s.16 Mental Capacity Act finding that it is in the mother’s best interests to be cared for in a Mother and Baby Unit. It is not clear if this was properly advocated for by the Official Solicitor. The practical effect of this decision would be that the child would remain with the mother, but would not at this point be subject to any order under the Children Act. The Mother and Baby Unit option was recommended by the clinician working for the Health Trust and would allow AA and her baby to remain together consistent with her wishes. If it was necessary to detain AA to make this option possible then this could be done under the Mental Health Act (there is precedent for this, in Re E(Medical Treatment) the CoP ordered that the patient receive treatment for her mental disorder in her best interests, but in order to practically achieve this she was subsequently detained under s.3 MHA).
4. To make no order or recommendations at all.
Since the baby was to be born the following day we will assume 4 was not a realistic option. Mostyn J. ruled out 1 on the basis that it was heavy-handed. He took the initiative, indicating that he is capable of taking initiative and advocated 2. Why didn’t he take the initiative and apply 3 instead which was consistent with the medical evidence, evidence of AA’s wishes and presumably consistent with the child’s welfare?
There might have been strong reasons to suppose AA posed an immediate risk to her child after the birth. But this evidence did not appear to have been advanced by the local authority, instead the evidence was she might not be capable of caring for the child due to an earlier history of neglecting her other children.
In any event if AA posed immediate risks to her child after birth there would also be risks involved in option 2 which he did choose.
Choosing Option 3 would not prevent the local authority applying for an order under s.38 at any later point if they became concerned about the child’s welfare, or in an emergency asking the police to apply for an order under s.46. It only facilitated choices, it did not limit them.
Choosing Option 3 would rely on a bed being available. This would be an obligation on the Health Trust and not the local authority. Since AA was about to undergo major surgery Mostyn J. could easily have said that he was minded to make an order under the Mental Capacity Act but invited the Health Trust to ensure that the relevant service was available for AA and her child before doing so and then reconvened the hearing the following day.
In any event Option 3 was not chosen, despite the Official Solicitor representing the view that it should be. A further question then is why the Official Solicitor did not appeal this decision? It was of grave significance to AA, and as Celticknot pointed out in an earlier comment on this blog the senior courts have been critical of judgments made in the early stages after a child is born which lead inexorably to adoption. An advocate concerned with promoting AA’s best interests should have been vigilant regarding this point.
It has been said this is an extempore judgment. I agree. But I don’t think that justifies a failure to survey the options which has such serious implications for AA.