Open justice in court reunites mother and baby

By Joshua Rozenberg Britain's best-known commentator on the law.

13/03/2008 Telegraph

The case of the teenage mother whose baby son was wrongly taken away from her three hours after his birth is a truly terrifying tale.

A miscarriage of justice came to light on this occasion only through the happy coincidence of dedicated lawyers, a bold judge and an assiduous reporter.

But the case also revealed alarming failings by staff at Nottingham City Hospital and a much deeper level of unlawful behaviour by social workers at Nottingham City Council. It would be surprising if these failings were confined to Nottingham.

The case involves a baby born in January to a mother who turned 18 last summer.

Described as a "very vulnerable young adult", she has a history of self-harm as well as drug and alcohol abuse.

The woman, identified only by the initial G, had been taken into care by Nottingham City Council as a child.

Young people are not meant to be left stranded when they leave care at the age of 18, especially someone like G, whose "problems are vastly greater" than many others in her position.

Instead, the social services department is required to produce a "pathway plan" identifying the young person's needs and the financial, practical and other support that it is proposing to provide.

That includes a "personal adviser" who speaks up for the vulnerable young person in dealings with the local authority.

The adviser's duties were spelled out nearly three years ago, in a case brought by a 17-year-old boy against Caerphilly Council.

Giving judgment, Mr Justice Munby stressed that "a pathway plan must spell out who does what, where and when".

A plan had been prepared for G before she left the care of Nottingham City Council, but her lawyers believed it did not meet the standards laid down in the Caerphilly case. They decided to challenge the plan in the High Court.

G's application for judicial review was due to be heard by Mr Justice Munby on January 30.

A day earlier, though, G had unexpectedly gone into labour, giving birth to a healthy boy shortly after 2.00 am on the day of the hearing.

When the baby was three hours old, hospital staff removed him to a separate ward. They did so purely on the instructions of a social worker.

Less than six hours later, G's counsel told Mr Justice Munby that the baby had been taken from his mother without legal authority.

Nottingham had not applied for an interim care order or an emergency protection order. There was no risk to the child of immediate physical harm. So the judge ordered the medical staff to return the baby.

The hospital was notified ay 12.20 pm. Within 10 minutes, G and her son were reunited.

If G's application had come before a judge in the Family Division, it would have been heard in private. In theory, reporters could have asked the judge to sit in public, but it is unlikely that they would have known anything about the case.

However, G's application was made during an application for judicial review. It was therefore heard in the Administrative Court — which is open to the press and public.

Fortunately, a reporter from PA News, the national news agency, was sitting in Mr Justice Munby's court on the off-chance that something interesting might turn up.

The judge knew John Aston's face but not his name. Aston, he said, epitomised the court reporter described by Lord Denning in 1955. "He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it… He is, I verily believe, the watchdog of justice."

This particular watchdog put out a story that Mr Justice Munby later praised as "fair, balanced and accurate".

It appeared prominently in the following day's newspapers. By the time the case came back before Mr Justice Munby on February 18, the publicity had worked wonders.

Social services had applied for a court order. A judge in Nottingham had agreed that the baby, now identified as K, should go into local authority foster care while social workers assessed G's ability to look after her son.

And the Court of Appeal had decided that Mr Justice Munby should consider whether to direct a further assessment.

That, in turn, led to a recommendation by Nottingham Social Services that G and K should be assessed at a specialist mother-and-baby unit in the South East, a recommendation approved by the judge. This will cost the local authority at least £63,500.

And what of G's pathway plan, the subject of her application for judicial review?

Nottingham had produced three successive revised plans in response to different stages in the legal process.

In court last month, the council maintained that its latest plan, dated February 6, was not deficient.

On being told by Mr Justice Munby that this argument was "quite untenable", Nottingham threw in the towel and conceded it had failed to comply with the law.

A social worker who had prepared the plan was also one of G's personal advisers, leaving the worker with a foot in both camps — something that the judge had specifically outlawed in the Caerphilly case.

"It is depressing to have to note this catalogue of failing," the judge said last week.

The case "exhibits serious failure by a major local authority to comply with its statutory duty and to heed relevant judicial authority".

Nottingham did not even suggest that this was an isolated failing, frankly admitting it was "usual for the personal adviser to have played a part on both sides of the fence".

And the decision to take K away from his mother? Even worse, in my view.

At the first hearing on January 30, Nottingham accepted it had no legal justification for this. But at the subsequent hearing, the council asserted that G knew of the plan and had not raised any objections, either before giving birth or immediately afterwards.

The argument that this amounted to consent was as divorced from legal substance as it was from the emotional and hormonal realities of the human condition, Mr Justice Munby said.

It had "the potential for the most pernicious consequences, not least because there are probably many mothers who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did in this case".

Not that hospital staff acted any better, simply assuming "on the mere say-so of a social worker" that it was lawful to take the baby away.

The case shows the need for more training and guidance, both for midwives and for social workers.

It also shows the benefits of open justice at a time when court reporters being refused access to the written "skeleton" arguments on which they now depend.

As the judge said, it was "salutary" to think of what would have happened if the original application had been made in the Family Division.

And what of the young mother? Will G keep her son?

"She may find the regime at the mother-and-baby unit more challenging and demanding than she expects," Mr Justice Munby predicted.

But he hoped she would rise to the challenge. "Unless she can, the prospects must be bleak."