The appearance of fairness

Barbara Hewson, Dermot Casey and Nuala Mole analyse the recent ECtHR ruling in P, C & S v UK

the crucial importance of legal representation in care and freeing proceedings

the separation of a newborn child from its mother

the lessons for CAFCASS and the Family Division.

Barbara Hewson (Littman Chambers), Dermol Casey (Coram Chambers) and Nuala Mole (AIRE Centre) were instructed by Leigh, Day & Co for P, C and S.

This article originally appeared in the New Law Journal, Vol 152 No.7044,

August 2002. Reproduced by permission of Reed Elsevier (UK) Limited trading

as LexisNexis UK.

The European Court of Human Rights' recent ruling in P C & S v United Kingdom (App No 56547/00) [2002] All ER (D) 239 (Jul) is groundbreaking. It is one of those rare cases since Airey v Ireland (1979) 2 EHRR 305 where the court has held that lack of legal representation, in civil proceedings, breaches the guarantee of effective access to a court under Art 6 of the European Convention on Human Rights. It is the first case concerning a mother alleged to have "Munchausen syndrome by proxy", where the court examined the measure of separating a newborn from its mother immediately after birth under Art 8 Unusually, the court allowed the parents of a child, who was compulsorily adopted, to complain on the child's behalf. It also found that lack of legal representation for the natural parents in the domestic care and freeing proceedings violated the procedural guarantees inherent in Art 8. This not only infringed the parents' rights under Art 8, but also the child's rights.

The facts

The background was complex. The mother, P, was American. In 1992 her first marriage ended acrimoniously when her child, B, was seven. In 1995 F was charged with cruelty towards B and endangering his health, a felony offence. A Dr Schreier, an expert on "Munchausen syndrome by proxy" (induced illness syndrome), testified for the prosecution, though he had never met P or examined her. P was acquitted of the felony, but convicted of a misdemeanor and sentenced to three years' probation. A three-month jail term was suspended, after a court-appointed psychiatrist advised that jailing P would not further B's interests.

In 1997 P married C in England and became pregnant. Upon learning of her remarriage P's ex-husband contacted the UK authorities. P's doctor informed the local authority, Rochdale, of P's pregnancy. The couple were investigated under s 47 of the Children Act 1989. Dr Schreier sent an alarming communiqué, recommending that the baby be removed at birth. The couple saw a psychiatrist, who noted that the parents did not share the authorities' concerns over the risk posed by P to the unborn child.

S, a baby girl, was born by emergency Caesarean early on 7 May 1998. F was allowed to hold her daughter, but not to feed her. Rochdale obtained an emergency care order at 10.30 am. Social workers look S away at 4.30 pm. P did not see her baby again, until she was discharged from hospital some days later. Thereafter contact was supervised, four times a week. The supervising social workers considered that P and C's contact with their baby daughter was exemplary.

The domestic proceedings

Rochdale commenced care proceedings and the matter was transferred to the High Court. A child psychiatrist, Dr Bentovim, examined P and C, and concluded that P had a personality disorder, and that she was very reluctant to take responsibility for what had happened to B. He noted that C did not believe that P would harm S. Rochdale made a care plan for adoption. Dr Bentovim advised that, ideally, S' future needed to be resolved before her first birthday. Proceedings to free S for adoption were run concurrently with the care proceedings.

When a child is freed for adoption, the birth parents forfeit their parental status. They can play no part in the choice of adopters or issues such as contact, without leave of the court (which is rarely granted). Freeing for adoption has been much criticised because it excludes the natural parents from the child's life before the child becomes a member of an adoptive family.

Both P and C had legal aid. They were separately represented, each by leading counsel. When the care proceedings began, C withdrew. After telling the judge, Mr Justice Wall, that P was requiring them to conduct her case unreasonably, P's legal team also withdrew. The judge refused P's application for an adjournment to instruct new lawyers, saying that S would be prejudiced by the delay. P therefore had to represent herself in a four-week hearing, while everyone else had counsel.

On 8 March 1999 the judge ruled that P had harmed her son B, and posed a significant risk to S. He found C was incapable of altering his emotional perception of P. He refused leave to appeal. Before the transcript of his judgment (159 pages) was available, he heard the freeing application on 15 March 1999. P and C appeared in person, and both opposed it. They had valid legal aid certificates in force. Wall J accepted that there appeared to be "an element of rail-roading" in dealing with freeing so soon, but considered that S' interests required this. Issues of contact with S should have been dealt with in the care proceedings (s 34(1) of the Children Act 1989) and again at the freeing stage (s 8 of the 1989 Act). Wall J did not deal with contact, though he made a freeing order. P and C were refused leave to appeal. The Court of Appeal (Thorpe and Roch LJJ) also refused leave on 5 July 1999. It noted that the care proceedings were of exceptional complexity, with enormous documentation, much expert evidence and lasting 20 days. S was placed with an adoptive family on 2 September 1999.

The court's assessment P and C complained to the European Court of Human Rights that their rights under Arts 6 and 8 of the Human Rights Convention had been infringed. They also complained on behalf of S, their daughter.

The court addressed Art 6 first. There is no express right under the Convention to legal representation in civil cases comparable to the right to counsel in criminal cases, which is explicitly guaranteed by Art 6(3)(c). The court noted Wall J's comment that, if P had a lawyer in the care proceedings, her case would have been conducted differently. It did not matter that the absence of a lawyer might make no difference to the actual outcome. In the court's words: "The complexity of the case, along with the importance of what was at stake and the highly emotive nature of the subject matter, lead this court to conclude that the principles of effective access to court and fairness required that P receive the assistance of a lawyer." As for the freeing application, the court considered that this also raised difficult points of law, and that P and C were not equipped to cope with it alone, especially so soon after the care order.

The court said that it was "draconian" to proceed so quickly with the freeing application. S was with experienced foster parents and there was no difficulty in finding a family to adopt her. Therefore, "the imposition of one year from birth as the deadline appears a somewhat inflexible and blanket approach, applied without particular consideration of the facts of this individual case". It went on:

"the court is nevertheless of the opinion that the procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner on the issues which were important to them. For example, the court notes mat the judge's decision to free S for adoption gave no explanation of why direct contact was not to be continued or why an open adoption with continued direct contact was not possible, matters which the applicants apparently did not realise could, or should, have been raised at that stage ... The court concludes mat the assistance of a lawyer during the hearing of these two applications which had such crucial consequences for the applicants' relationship with their daughter was an indispensable requirement"

As for removing S after birth, the court (like the Chamber and Grand Chamber in K and T v Finland, CC judgment 12 July 2001), found that there was a violation of Art 8 by the abrupt removal of S at birth from the hospital and thus from her mother, her father and her paternal family and her placement in a foster family many miles away. It found that the rights of the applicant parents had been violated by this measure (para 133). It said:

"the taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved (K and T v Finland (Application No 25702/94), [CC], ECHR 2001-W para 168)."

Such a step is "traumatic for the mother and places her own physical and mental health under a strain, and it deprives the new-born baby of close contact with its birth mother and ... of the advantages of breastfeeding." The court was struck by the absence of explanation why S could not have remained in hospital, under supervision. It noted that there was no suspicion of life-threatening conduct by P. Although it considered that it was legitimate to obtain an emergency protection order, the manner of its implementation was unnecessarily harsh, and violated Art 8.

Finally the court considered the procedural guarantees inherent in Art 8. Parents are entitled to be involved in the decision-making process when the State is embarking on child protection measures. In this case, the court considered it essential that the parents had legal representation. If the parents had such representation, the outcome for the whole family might have been affected.

Comment

The European Court of Human Rights did not seem concerned that neither P nor C had any opportunity to challenge the making of the emergency child protection order. It is doubtful whether any mechanism existed then in English law whereby the parents, suspecting Rochdale's plans to remove S at birth, could seek to restrain Rochdale. However, the Human Rights Act 1998 is now in force. Possibly, parents in their position now could seek an injunction to prevent such a draconian step as the removal of a newborn, because of the deleterious effect of such a measure on both mother and baby. In any event, absent serious grounds for suspecting life-threatening conduct by the newly-delivered mother (e.g. by reason of severe mental illness), newborns should be allowed to remain in hospital and to be breast-fed, with such supervision as may be necessary, while their mothers recover from childbirth.

It is striking that the Strasbourg Court concluded that the child's rights under the procedural guarantees in Art 8 were infringed, although S was legally represented throughout. It is unclear what message it was trying to send by this finding. Was it that S's legal representatives, for the proper protection of her interests, should not have agreed to proceed without representation for the parents? If so, the lesson is for CAFCASS, the body which provides guardians for children in such cases. (CAFCASS guardians must be considered as a "public authority" for the purposes of the Human Rights Act 1998 and are therefore required to act in conformity with the Convention.) Or was it that Wall J should have ensured that P, and later P and C, were legally represented before going ahead, because not to do so would also violate the child's rights? If so, the lesson is for the Family Division judges. Perhaps the lesson is for both. Article 6 also requires that in complex cases, when birth parents' future relations with their children are at stake—especially if a care order or compulsory adoption is contemplated— it is necessary to ensure effective and competent legal representation for the parents. Finally, the issue of future contact must be carefully investigated, and adjudicated upon; not passed over as (tragically) it was here.

The appearance of fairness
By Barbara Hewson, Dermot Casey and Nuala Mole (pdf-fil)

P, C and S v. UK

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