The Curious Case of The Court, The Commentators, The Woman, and Her Baby

Posted on 8th Jan 2014 in Case Comment

How the family courts were induced to deliver open justice by caesarean section

There is a story here which is a sad one, about a woman and her baby, and how they were separated, and why. It is a story that has been subject to a good deal of comment, even outrage, not all of it well informed.

But there is also a story about the story, about how the original story broke, and why; and this second story has given rise to a good deal more comment, not least as to how the ill-informed comment and outrage came to be so ill informed. The discussion has taken a range of forms, from serious constructive blogs and articles, through blunt or flippant tweeting, to sharp satirical mockery. And out of it all, some good has come, though this may be of little comfort to the woman who has been parted from her baby.

This article is an attempt to round up as much as can be summarised about it all so far, with the caveat that the saga may not yet have run its course.

How it first appeared

The story seems to have first broken with an article by Christopher Booker in the Saturday Telegraph of 30 November 2013, under the headline “Operate on this mother so that we can take her baby.” (“A mother was given a caesarean section while unconscious – then social services put her baby into care” it began.) The story was taken up by other newspapers the following day (1 December), eg The Independent with its headline “Forced c-section was ‘the stuff of nightmares’: Social Services condemned for forcibly removing unborn child from woman.”

The story, as it first appeared, was that a pregnant Italian woman, while visiting Britain over the summer the previous year, had suffered a “panic attack” after failing to take medication for her bipolar disorder, and had been “sectioned” under the Mental Health Act 1983 (ie compulsorily detained under section 3). Her baby was then “forcibly removed from her womb by social services” while she was unconscious, following an order of the Court of Protection, after which she was sent back to Italy without having been allowed even to see her daughter. The woman was said to have come back to Britain in February 2013 to request the return of her daughter, only to be told that the baby would be put up for adoption in view of the risk that she might again in future fail to take her medication and suffer a relapse.

Booker articleThe story in the Telegraph was accompanied by an image of a hand, presumably judicial, wielding a gavel: something no English judge in fact does or has ever done. But it would be unfair to condemn the accuracy of the story by reference to ignorant picture research. Booker stated that the woman’s legal battle for the return of her daughter “has by now involved lawyers in three countries, all of whom I have spoken to at length to establish the facts of this remarkable story.” One of the countries was the USA, where the woman’s ex-husband now lives, and where gavels are indeed used in court, but the picture caption referred specifically to an English judge, Mr Justice Mostyn, who, sitting in the Court of Protection, had reportedly authorised the removal of the woman’s baby. (The third country was, presumably, Italy.)

The newspaper reports mentioned that an MP, John Hemming, had taken an interest in the story and was planning to raise the matter in Parliament. He will appear again later in the saga. Suffice it to say that he was not complimentary about the English family justice system.

A fuller picture emerges

The local authority statement

The next day (2 December), Essex County Council released a statement of facts to dispel some of the myths and speculation. This made clear that “There have been lengthy legal proceedings in this case over the past 15 months” and it hadn’t quite been the smash-n-grab raid by overzealous child protection workers as had first appeared.

First, it had been the health trust who had first applied to the Court of Protection, not social services. It was their concerns about risks to the mother and baby that led to their application for an order permitting delivery of the baby by caesarean section. Secondly, and in contradiction of Booker’s assertion that the mother “was not allowed to see her baby”, Essex asserted that although the operation was conducted under sedation, the mother was able to see her baby later that day and on the next. Thirdly, it was because she appeared too unwell to care for the child that Essex Social Services obtained an interim care order from the county court. (This seems to dispel the idea that all she suffered was some sort of “panic attack” without her usual medication.)

Moreover, something of the mother’s previous history also emerged. Two previous children had already been taken into care by the Italian authorities. Essex emphasised that their social workers had “liaised extensively with the extended family before and after the birth of the baby, to establish if anyone could care for the child.” This seemed to contradict the assertion by Booker in his original article (he subsequently wrote two more) that the woman’s American ex-husband’s sister was being put forward as someone who might look after the baby, though whether she was actively seeking to be its adoptive mother was not made clear.

Essex pointed out that the mother had participated in the care proceedings in February, when the judge had ruled against her, and that the Italian court had ruled that the child should remain in England. In October, Chelmsford County Court had granted Essex permission to place the child for adoption.

The health trust statement

The day after (3 December), the health trust (North Essex Partnership NHS Trust) issued its own statement (exceptionally, and apparently in order to counter statements to the media by the “family” concerned). It included the following:

“On this occasion the pregnancy made it very difficult to treat Ms X as medications would have affected the unborn child. The application for the C-section was made to the Court of Protection by the obstetricians to ensure the safety and well-being of both mother and baby. Ms X was extremely unwell and remained in hospital for some time after the birth for treatment of her mental disorder.”

What this appears to suggest is that the woman’s pregnancy was a barrier to complete treatment of her mental disorder, because she couldn’t be given the right drugs. Accordingly, the decision to apply to the court for an order permitting the removal of the baby by c-section was justifiable as a way of protecting both mother (who needed treatment) and baby. What it doesn’t appear to address is the argument that a c-section was necessary on non-mental health grounds, simply because (as emerged in the Court of Protection hearing) the woman had had two previous c-section births, and accordingly there was a greater risk of complication in natural birth.

The statement provided a link to the judgment of Chelmsford County Court but NOT, surprisingly, that of the Court of Protection, in whose proceedings it had actually been a party. (That was only released the day after: ie 4 December.)

The Court of Protection

The health trust’s application to the Court of Protection had been heard and decided on Thursday 23 August 2012: see In re AA [2012] EWHC 4378 (COP). It was evidently made at short notice and in a bit of a rush, as Ulele Burnham, counsel for the health trust made clear when apologising for the state of the bundle, which was unpaginated; and the judge remarked that the law report of In re MB (Medical Treatment) [1997] 2 FLR 426, provided for him only had “every other page.” He went on: “However, I have got the book out and I have now read the intervening pages.”

It seems rather odd, if the woman had been detained under the Mental Health Act since June, and was obviously in an advanced state of pregnancy, that the doctors caring for her should have waited some two months before deciding, in late August, to make an application to the Court of Protection, for an order permitting them to perform a planned caesarean birth under compulsory sedation, some two days before her due date, which (as is apparent from the transcript) was on the following Saturday. Though the operation need not have been done much sooner than the Friday when it actually took place, ie one day before the due date, surely the application for permission could have been made to the court rather sooner – with more speed and less haste?

It suggests either a shambolic or at least not very joined up treatment plan – or (but there is no evidence of this in the transcript reproduced) a sudden and dangerous change in the patient’s condition. Also, although the judge was shown a psychiatrist’s report and evidently took time to look at it, there is nothing in either the transcript or judgment to support the statement made by the health trust (see above) that the woman’s pregnancy may have been a barrier to effective treatment of her mental disorder.

Instead, the judge relies on her lack of capacity to consent, within the terms of section 2(1) of the Mental Capacity Act 2005, owing to “a significant mental disorder which is psychotic in nature” and manifested in “psychotic episodes and delusional beliefs.” Section 2(1) of the 2005 Act defines lack of capacity as being “because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This seems to have been accepted by David Lock QC, counsel appointed to represent the woman, instructed by the Official Solicitor as her litigation friend, and the only other party before the court.

In those circumstances, following the binding authority of the Court of Appeal in In re MB (Medical Treatment) [1997] 2 FLR 426(also free case summary in The Independent, 8 April 1997) the court had to make a decision in her best interests having regard to the “principle of least restriction”. The judge then switched his attention from the psychiatrist’s report, which was relevant to capacity, to the advice of the consultant obstetrician, which was that the mother should have an elective planned caesarean in order to avoid not only risks to the child but also that to herself, of a ruptured womb. This risk was said to be “perhaps as much as 1%” which was described (surprisingly) as “significant.” It was also decisive, since the judge concluded that it was a sufficient reason to make the order, alongside the fact that it must be in her “mental health best interests that her child should be born alive and healthy.”

Though not alluded to in the judgment, the transcript makes clear that one of the health trust’s concerns was that, if a natural vaginal birth were permitted (having regard to the principle of least restriction), there was a risk that the mother might “dissemble or refuse to cooperate” during the birth, putting the baby’s life at risk if complications emerged. The judge made clear, however, that “harsh though it is, the interests of this unborn child are not the concern of this court.” His order was solely on the basis of the mother’s best interests.

Moreover, it is clear that the local authority (whether acting in the child’s best interests or otherwise) were not a party to the application before the Court of Protection and took no part in the hearing. That rather defeats Booker’s suggestion (or the Telegraph’s not uncharacteristic sexing up of his headline) that the mother was ambushed by social workers purely to snatch and save her baby for adoption.

The care proceedings

By contrast, the first thing Judge Newton says in his judgment in the care proceedings in relation to the baby, in In re P (A Child) (unreported) 1 February 2013 (Bailii version [2013] EW Misc 20 (CC)), is that: “Her welfare is my paramount consideration.”

He then reveals that the father, B, is a Senegalese national living in Italy, who may have overstayed a student visa and could not come to the UK, despite having been given leave to intervene, but opposed the local authority’s application for a care order. The mother, A, who appeared and was represented, also contested the proceedings, asserting that although in the past her failure to take her medication for bipolar affective disorder had led to manic episodes, she was now taking her medication and was well; and that, since P was half Italian, her future should be in Italy which would enable her to have a relationship with her two half-sisters there (currently cared for by their grandmother).

The judge went through the history of the mother’s illness, and its traumatic effect on her existing children, all of which reinforces the view that her condition was a lot more serious than was suggested (admittedly on the basis of incomplete information) by the first press reports of this case.

The judge then criticises the doctors treating the mother for allowing her to leave, or be escorted from, the UK the previous October with undue haste on the basis that she was well enough to go back to Italy and wanted to do so. In his Honour’s opinion, she was not well enough then, and her doing so damaged her chances of regaining care of P.

The good news, however, was that having complied with her treatment, she was now extremely well and in giving evidence was “as clear and articulate, indeed more so than most people I hear from the witness box where English is their first language”, which hers of course was not. The judge also heard evidence from the child’s guardian, supporting the local authority’s view that P’s future needed to be settled (by adoption) as soon as possible.

The judge identified his task as being “to consider whether P can be placed with her family and be cared for to a satisfactory and predictable standard within an appropriate timescale.” It was not whether she might be better off adopted. If he made a care order, then he would have to be satisfied, having regard to In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35[2009] AC 11 that it was:

“lawful, necessary, proportionate, and a reasonable response to P’s sad predicament. I bear in mind that a care order, particularly one with a plan for adoption and placement, represents a drastic curtailment of the rights of both the parents and of P under article 8 of the European Convention on Human Rights and that can only be justified by a pressing concern for her welfare.”

Having considered the evidence and performed a balancing exercise, Judge Newton concluded that P’s welfare would best be secured by way of adoption, and that the parents’ consent should be dispensed with and a placement order made.
There was no appeal from this order, or indeed that of Mostyn J.

The President takes over

Meanwhile, on 2 December Sir James Munby, President of the Family Division (and also of the Court of Protection) announced via the Judicial Office that any further county court proceedings in the matter were to be transferred to the High Court and heard by him, and that any further application in the Court of Protection should likewise be heard by him.

This was interpreted by some more strident voices (eg Booker) as an executive decision by the top family judge to step in and clear up the mess (“judge must unravel saga of baby snatched from womb”) and quiz those responsible (“ask the social workers to explain their actions”). It was of course no such thing. It was merely a decision that if any further application were to be made to the court, it should be heard by him.

In fact, the only further proceedings (so far) have been an application by the local authority for reporting restriction order. This was initially made without notice to the media and refused for that reason, on 3 December. However, it was subsequently renewed on notice and released by the President to Mr Justice Charles, who on 4 December granted a much more limited form of injunction than that applied for, basically confining its effect to a prohibition on the naming of the baby, P, and her carers and of any images or information relating to their whereabouts: see In re P [2013] EWHC 4383 (Fam). Subject to that, the mother was entitled to identify herself to the press and to be identified by them, and to be photographed and quoted in anything she might wish to say.

The order was a temporary one, and the matter returned to the court on 13 December, where it was heard by the President himself.

The benefits of transparency

Since becoming President of the Family Division of the High Court, Sir James Munby has made clear his aversion to excessive secrecy in the family courts and his desire to ensure that any discussion in the media of decisions of the family courts (and by extension the Court of Protection) should be as well informed by publicly accessible facts as is consistent with the interests of justice.

For example, in his speech on 11 November 2013 at the Annual Conference of the Society of Editors, entitled “Opening up the Family Courts“, he said:

“There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction.”

He added that “orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.” Human justice was inevitably fallible. Public debate, and the jealous vigilance of an informed media, had an important role to play in exposing past miscarriages of justice and in preventing future ones.

Moreover, it was not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reported information which it was entitled to publish. Freedom of speech was not something to be awarded to those who were thought deserving and denied to those where were thought undeserving.

Nevertheless, the media should remember CP Scott’s famous aphorism that

“Comment is free, but facts are sacred.”

His Lordship had recently given a judgment that had received coverage in the media. A legal commentator had suggested that readers might wish to compare what he had actually said with how it was reported in the media:

“Compare. And contrast… And weep.”

(The commentator in question was the family law blog “Pink Tape”, written by Bristol-based barrister Lucy Reed, and related to media (mis)reporting of the President’s judgment in In re W (A Child); In re H (Children)[2013] EWCA Civ 1177; [2013] WLR (D) 384.)

The President and the Press in the case of P

Giving judgment on the returned hearing, Sir James having recounted the facts then analysed the media coverage of them, which he said had been “extensive”. Much of it has also been “strident” and some inaccurate. There had also been “interesting comment by various legal commentators on the blogosphere”: the first time a senior English court judgment has mentioned this arena.

The coverage had four main themes:

  1. criticism of the orders made by the English courts,
  2. reports and interviews showing the mother’s side of the story,
  3. criticism of the “secrecy” and lack of transparency in the court process, and
  4. criticism (mainly on the blogosphere) of the way the case had been reported.

Regarding the relationship between the media and the court, the President said he could only repeat what he had said earlier in In re J (A Child) (Identification: Restrictions on Publication)[2013] EWHC 2694 (Fam); [2013] CN 1340 and, subsequently, in his speech to the Annual Conference of the Society of Editors, (above), including the reference to CP Scott’s dictum and Pink Tape’s lament.

Regarding the exercise of the court’s jurisdiction in relation to the question of reporting restrictions in this case, again the relevant principles had been summarised in In re J, at paras 21-24. Put shortly, the court had to conduct a “balancing exercise”, focusing on the comparative importance of the specific rights in play in the individual case and treating the interests of the child, although not paramount, as a primary consideration.

Here a number of competing interests were engaged, protected by articles 6, 8 and 10 of the Human Rights Convention: the public had an interest in knowing and discussing what had been done, both in the Court of Protection and in the Chelmsford County Court; the mother had an equally obvious and compelling claim to be allowed to tell her story to the world; P also, had an equally compelling claim to privacy and anonymity.

Starting with P, her welfare demanded imperatively that neither she nor her carers should be identified and neither the compelling public interest in knowing about the case nor the mother’s compelling claim to be allowed to tell her story, would be advanced one iota by identifying P or her carers.

However, there were obvious and compelling reasons why there should be no stifling of the widest possible public discussion of what had happened, nor any stifling of the mother if she wished to speak out and she should be enabled to do so by reference to her maiden name as well as allowing her photograph to be published.

A parting shot

Before parting from the case, the President added, there were two points that required to be addressed with honesty and candour. Both related to the fact that, when the story first “broke” on 1 December 2013, none of the relevant information was in the public domain in England, nor were the judgments given by Mostyn J on 23 August 2012 and by Judge Newton on 1 February 2013. Indeed, at that point no approved transcript of either judgment was in existence.

The first point was this: how could the family justice system blame the media for inaccuracy in the reporting of family cases if, for whatever reason, none of the relevant information had been put before the public?

The second point was, if anything, even more important. Surely the case had to stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approached “transparency”. It was not possible to go on as hitherto. Many more judgments had to be published. And, as the case so very clearly demonstrated, that applied not merely to the judgments of High Court judges; it applied also to the judgments of circuit judges.

The blogosphere

As the President noted, there has been a lot of commentary on the blogosphere. The comments fall into two categories: those made before the President’s judgment, and in some cases before the earlier judgments had been published, and those (like this one) that came after, and have been able to include a broader survey of the case.

Of the earlier group, one of the first was by Rachel Buchanan on Halsbury’s Law Exchange. Headed “‘Forced’ C-section case – what we know now“, it noted that “This was a story short on fact and long on speculation, which is a dangerous combination.” With the benefit of Essex’s statement (above), she was able to put the early press right on a number of factual points. However, she was then forced herself to speculate on what should properly have happened (“several applications would need to have been made with the most stringent of tests applied at every level”) and to quote extensively from Lucy Reed’s initial post on the Presidentially-approved Pink Tape, dated 2 December, beginning with her caveat “this remains a case about which we still know very little.”

The Pink Tape post, updated on 3 December, was entitled “Never let the facts get in the way of a good story, eh?” What was most concerning about the affair, it said, was that the essence of the story was not apparently based in fact at all: “What people have been most exercised by (and rightly so) is the idea of enforced surgery as a procedure recruited in support of a system of forced adoption.” What had been blurred and then lost in the reporting of the case was “the crucial distinction between the justification for a medical procedure and the justification for the removal of a child into care.”

Pink Tape returned to the fray next day (4 December), with an “Update on the Essex C-section case“. This analysed the judgments from the Court of Protection and county court which had by then been released, and explained some of the legal procedures for the benefit of less well informed readers (including impliedly the press). It concluded with this observation:

“It has been said today that it is only thanks to the Telegraph article and subsequent press coverage that we now have the two judgments that are in the public domain. As a matter of causality that is so. But it does not justify poor reporting… and the consequently ill-informed public discussion.”

“It is spurious to suggest that this sort of headline led reporting is some kind of public service. It’s not. It may well be newsworthy. It may well be a case of public interest. It may well be a case that should have been transparently reported from the outset… But this is not the way to go about it.”

Pink Tape recommended several other blogs for the value of their comments on the case, including that of Carl Gardner, on Head of Legal, entitled “Booker, Hemming and the ‘forced caesarean’ case: a masterclass in Flat Earth news“. The definition of “Flat Earth news” was derived from a book by Nick Davies which said:

“A story appears to be true. It is widely accepted as true. It becomes a heresy to suggest that it is not true – even if it is riddled with falsehood, distortion and propaganda.”

He then cited the Telegraph piece by Booker as an example, and described how John Hemming, the MP cited in Booker’s piece, then quoted the piece on his own blog, under the title: “Careful visiting the UK whilst pregnant. They just might take your baby for adoption.” He then blogged that he would raise the matter in Parliament. (He subsequently tabled an early day motion).

Gardner then gave some background facts about Booker and Hemming, both of whom had been criticised by judges for inaccurate assertions about cases in which children had been taken into care. Of articles by Booker, Judge Bellamy had said in In Re L (A Child: Media Reporting) [2011] EWHC B8 (Fam) that they “contain significant factual errors and omissions.” Of Hemming, after he had acted as McKenzie friend to a parent whose child had been taken into care, the former President of the Family Division, Sir Nicholas Wall had said, in In re P (A Child) (Care and Placement Order Proceedings: Mental Capacity of Parent) [2008] EWCA Civ 462; [2008] 2 FLR 1516, para 168:

“As to Mr Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.”

Returning to the c-section story, having recounted some of the more lurid assertions in the press reporting, Gardner said:

“Of course we actually knew very little about what happened. But unless you harbour conspiracy theories about judges, the NHS and social workers, you probably think this sort of thing sounds unlikely, and want proper evidence before believing it. You’d be right.”

However, it was clear from the judgments which had been released that “the key claim that social workers sought this surgery in order to take the child is shown to be false.” Commentators on Twitter and the blogosphere had been right to question its veracity. “But from far too much of the media we’ve had an entirely one-sided, sensationalist and churnalistic approach to this story.”

On 5 December, barrister Elizabeth Prochaska on Birthrights posted her “Views on the forced caesarean judgment“, in which she analysed Mostyn J’s judgment in the Court of Protection, pointing out errors in the earlier press reporting as she went, but also not sparing the judge and applicant health authority for undue haste in making what need not have been such a “rushed” decision, saying “more care could have been taken over the evidence and [the mother’s] involvement in the decision-making.”

Although it was clear that the court had correctly not prioritised the interests of the fetus over that of the mother, “the capacity and best interests assessment were far from informed or careful.” The mother’s own views and feelings about how she wished to give birth were not discussed in the proceedings as transcribed, and she appeared not to have been consulted on them by her clinicians. The lack of consultation meant that the court’s decision on her capacity to decide was inadequate. The 1% risk of uterine rupture was not as significant as the parties seemed to think it was, and a request by the mother for vaginal birth would have been perfectly reasonable.

“All in all,” Prochaska concludes, “a depressing case for anyone concerned with modern maternity care and the rights of people with mental illness.”

On 6 December, barrister Barbara Hewson on Spiked weighed in with her post on “The inhumanity of a forced Caesarean“. She too commented on the apparent lack of any effort by the doctors to discuss a plan of care for the birth with the mother and the lateness of the hour at which the hasty application was made, and questioned why the judge thought a 1% risk of uterine rupture was “high”, especially seen in the context of the risks of “major abdominal surgery” (which were not even mentioned in court).

“The fact that the official solicitor, an agent of the state, acquiesced in this fait accompli also does not inspire confidence in his role as defender of the vulnerable.”

Hewson concludes:

“The real problem appears to have been the fear that she might not cooperate during a physiological birth. But if the professionals involved would not engage with her, preferring to talk to lawyers behind her back, and have a court order made without her knowledge, what hope was there of getting her cooperation? And how was this Kafkaesque approach supposed to promote her mental health? One cannot help feeling that she was being treated more like an unexploded bomb, which required dismantling, than a vulnerable mother-to-be.”

Later blogs

Among the comments posted after Sir James Munby’s judgment, Suesspiciousminds (described as a “local authority care hack”), in a piece entitled “It’s clobbering time! Or not, as it turns out – Italian C-section case, the President’s judgment“, observed that his Lordship “defends, to an extent, some of the inaccurate and tendentious reporting.”

The writer quotes the President’s call for more transparency, and says:

“Looking at the law reports, there are such few c-section cases reported since the introduction of the Mental Capacity Act, I think all of them should have been published as a matter of routine.”

And in The Guardian, Joshua Rozenberg wrote a piece entitled “The ‘forced caesarean’ case must lead to greater openness in the family courts“, in which he reported the President’s remarks about the need for more transparency before adding his own recommendation for all judgments to be transcribed, in case they are of interest to a story the press may wish to run.

“Someone will have to meet the costs of the transcripts. But it’s a small price to pay for greater public confidence in the family courts. And, as Munby himself acknowledges, when judges can change someone’s whole life by a stroke of the pen, there is a pressing need for greater openness.”

This is the logic of the internet, of course. If the transcripts had to be physically stored somewhere, then that would create a problem. Where would they be stored? Who would have control over access to their contents? But with everything everywhere online, a document of the remotest interest can be found in a few clicks. The trouble is, if they are all anonymised, as they would have to be, how easy would it be to find what you were looking for?

Fallout

The woman, after her Kafkaesque experience, has now gone one way, her child (perhaps avoidably) another. There is a feeling that the rush to judgment was hasty, both in the Court of Protection and the Chelmsford County Court, and that more care could have been taken to consult and perhaps try to accommodate the mother’s wishes, notwithstanding her mental illness.But if there has been an injustice, it had already happened by the time the first reports of the story broke. So the breaking of the story, at that time, a month ago, did and could have done nothing to ameliorate the lot of the mother or her child. The story broke without the full facts, indeed with few real facts and a lot of mistaken assertions, tendentious comments and the deafening noise of well-worn axes being ground.

Arguably, the story would have done much more good to the alleged victims of injustice if it had been properly researched. But how could it have been better researched if the material was not in the public domain? If there was no more material available, what reason could there be for waiting? Publish and be (as it happens) damned.

But wait: as was evident from several of the blogs, the story made assumptions about the legal system that were simply not credible. Any lawyer or well informed professional could have put the press right on whether it was remotely likely that social workers would carry out a caesarean section or seek permission to arrange such a thing, or whether the interests of the unborn baby would justify an order in the Court of Protection, which exists to protect those unable to consent to treatment etc. A little research of this nature, and it would soon have become clear that what the mother was saying, or her Italian lawyers, might not fit with the law, let alone the facts.

As barrister Adam Wagner pointed out, in another excellent post on the UK Human Rights blog,

“It was patently obvious to lawyers reading [Booker’s] article, which is presented as objective fact, that there were aspects which didn’t ring true.”

So the unavailability of the judgments, though a matter of regret, and an issue which the President has vowed to address, was not by itself a sufficient excuse for sloppy and overheated journalism.

The decline in standards of press and mainstream media reporting of legal matters is extremely regrettable, and probably irreversible in the current economic climate. This case serves as another example, both of that, and of the superior virtues of largely unpaid commentators on social media. Why are these well informed intelligent individuals not being employed by the media instead of the wind-up-toy columnists who spout prejudicial plaints about a legal system they have not bothered properly to understand? No doubt because intelligence and accuracy do not sell newspapers: what sells newspapers is a damn good (if not quite true) story.

On 14 December Booker, in another article on a different subject (er, media bias, actually), said:

“A vital function of responsible journalism is to seek out the evidence and expose bogus scare stories wherever they are found.”

I will leave it to others to decide whether his initial reporting of this story constituted “responsible journalism” or, in fact, “bogus
scare stories”.

Notes

  • Mr Justice Charles has subsequently been appointed Vice-President of the Court of Protection, with effect from 13 January 2014.
  • John Hemming MP has since been banned from the internet forum Mumsnetfor publishing confidential information in relation to this case, and for exposing the identities of other contributors, in breach of Mumsnet’s terms and conditions. He seems to have named not only the mother (which the President’s order permitted, though the Italian courts may not have done) but also one or more of her children, when posting unredacted copies of Italian court documents from the case, possibly in ignorance of their precise contents. There are also reports that he was participating in the forum while less than entirely sober. However, the standard of spelling and grammar among other contributors seems, shall we say, variable, and you could be forgiven for thinking they were all in the pub at the time. (The thread I read might not have been typical.)
  • A spoof mashup of this case with the nativity story appeared in the satirical magazine Private Eye’s Christmas Issue under the title: “‘Baby J’ Removed by Social Workers Because ‘Mother Was Delusional.” Christopher Booker works for Private Eye, but there is no indication as to who wrote this satirical item, which is actually very amusing, unlike the stories it is based on.
  • Finally, searches for the word “blogosphere” in English judgments, performed on Lexis and BAILII, found only this case. So it does appear to be the first use of the word, and concept, in a serious senior court judgment.