Tuesday, 3 December 2013

"Forced Caesarian": the Mother's story, and the Judge's

This is about the superficially shocking story, brought to the world by Christopher Booker of the Sunday Telegraph, of the Italian woman subjected to a forced Caesarian section by order of a secret court, who then had the child put up for adoption despite making a good recovery. Working closely with campaigning family lawyer Brandan Fleming and maverick MP John Hemming, Booker told such a horrifying story that Shami Chakrabarti was moved to comment that it sounded like "dystopian science fiction unworthy of a democracy like ours."

The following, from a follow-up Mail article, is vintage Booker:

Throughout all my years reporting on scores of chilling examples of what social workers are allowed to do behind the closed doors of our secret family courts, the case reported yesterday... is not just the most disturbing of all. It also illustrates how far our ‘child protection’ system has now gone horrendously off the rails. The facts are so shocking they beggar belief.

But are they?

As a result of the storm of publicity, the courts have now released the text of the initial pre-adoption placement ruling by Judge Newton at Chelmsford County Court, which originally had gone unreported as it raised no major legal issues. As yet, the other significant ruling, by the Court of Protection on the "forced" Caesarian that gave the story its gothic appeal to headline writers, has not been released though there are plans to do so.

The adoption judgement clears up some points, especially concerning the seriousness of the woman's underlying medical condition, while dispelling the wilder suspicions occasioned by Booker's purple prose. It becomes clear, for example, that the court looked in some detail into the woman's family circumstances before concluding (though not with much supporting evidence) that no-one in the extended family was able to care for the child. It also sheds some light on what had been the mystery of the child's father. He turns out to be a Senegalese national who apparently offered to take care of the child. The judge decided that this was a "non-starter", however, partly it seems because of his unclear immigration status.

The ruling contains some rather puzzling elements. There is severe criticism of doctors who approved her transfer to Italy, on the grounds that the judge thought she didn't appear mentally competent, yet an acknowledgement that soon after her return to her home country the woman's condition improved markedly. The judge appears to accept that the mother has made a good recovery, that her condition is manageable so long as she continues to take her medication, and that she has strong family support. Nevertheless, he decides in favour of adoption, partly it seems because the year needed for assessing the mother's capability would be too long.

This aspect may well provide the focus for an appeal, which is now to be heard personally by the President of the Family Division, Sir James Munby - a judge who has a strong track record, both of encouraging greater openness in the family courts and of requiring higher evidential standards from social work teams requesting adoption and placement orders. In any case, it's difficult to read the judge's summary of the evidence before him as leading inevitably to the conclusion that the mother, with family support, was incapable of providing a reasonably stable environment for the child, at least in the forseeable future. On the face of it Judge Newton's assessment of the evidence would seem to fall short of that now required, following the important recent decision in Re B-S, when a court wishes to deprive a parent of his or her familial rights under Article 8 of the European Convention. But we shall see.

What has been lacking so far is the mother's own voice. It is of course against British law to name her, or to identify her in any way. Italian law is less strict, and her story has been told already in the Italian press, though without naming the child. The main account, based on an interview with the woman's lawyers, provides important context and some hitherto unavailable details, though with the caveat that it is is course told exclusively from her point of view. I therefore offer this redacted translation.

The whole truth about the London baby (and her "mad" mother)

This is the story (with original documents) of A, the woman forced to undergo a Caesarian section in London and whose baby was taken by the state

She has not seen her baby daughter, who we will call Rose, for five months. The English social services, she says, have forbidden her from seeing the baby since then. They told her that she had already been adopted. The truth, however, is that in England, in the county of Essex, the first meetings have only just begun between the baby, now sixteen months old, and her prospective adoptive parents.

Her name A and is 35 years old. The UK authorites considered her "mad" and was she subjected to a forced Caesarian section, while her baby was given to the custody of social services on the order of Chelmsford county court. Despite this, she has consistently expressed a desire to regain custody of her daughter and to return with her to Italy. A is not crazy; she suffers from bipolar disorder, an extremely variable depressive condition that manifests itself in an alternation of depressive and euphoric phases but which can be kept under control by medication.

The woman... today lives in Chiusi where, having failed to become a Ryanair hostess (at the relevant time she was in England for a training course) she earns a living as a carer for an elderly couple. She returned to Italy towards the end of 2012, having become convinced the British authorities were deaf to her concerns and that she would have a better chance of winning her legal battle from Italy. Also living with her in Chiusi are her two older daughers, aged 11 and 4, who have different American fathers. Italian social services have placed them in the custody of her mother because of A's bipolar disorder.

A is the victim of what Liberal Democrat MP John Hemming, after the case exploded in the British press, called an "abuse of human rights". "It's like something from the Hitler regime", says her Italian lawyer, Stephano Oliva, upping the rhetorical ante. Oliva, along with his colleauge Luana Izzo has represented A since the beginning of 2013. He's equally scathing of the response of the Italian authorities: the foreign ministry, the London embassy and the consulate, all of whom were alerted by the lawyers back in May. "Only the Ministry of Justice has responded. They told us that they had no jurisdiction and told us to pursue legal action in the UK."

A has a complex personal history. "We were initially brought into the case in early 2013 after the aunt of her second daughter, who lives in Los Angeles and had already offered to take over custody of the two elder girls, alerted us to the existence of a third child," says Oliva. "With the consent of the American aunt, of the mother and of the grandmother we asked the Court of First Instance in Florence to seek the custody of the three children, including the baby that was in the care of British social services." A, who with her two ex-husbands had lived both in Italy and the United States, where she managed her partner's restaurant, was enthusiastic about the scheme. Her idea in fact was to go and live in Los Angeles, close to her three children and her American in-laws. The Florence court however decided that it had no jurisdiction over the third child, remitting the question to the British court. The British court rejected the request for custody because the baby had no blood tie with her American aunt.

In this tragic case, which reads like a movie script, Rose is in fact the daughter of a third father, a Senegalese immigrant resident in Italy. She was born in August 2012: A found herself in England for a few months to take a training course for potential Ryanair cabin crew at Stanstead Airport. At her hostel in July, when she was eight months pregnant, she had a panic attack probably caused by failing to take her medication. She was upset because she couldn't find the passports of her two children, who were in Italy with their grandmother. She called the police. The police, alarmed by her agitated state, telephoned her mother who informed them of her bipolar condition. A was sedated and woke up in a psychiatric hospital, effectively in a state of detention.

She remembers saying, "But I'm fine, there's no need to take me to hospital," Oliva recalls. But the situation becase more tragic in August when A was taken to an operating theatre for a C-section ordered by the court. Notwithstanding this, she continued to protest, "Where are you taking me? I want to give birth in Italy." "Apart from anything else A speaks very good English, so it can't have been a problem of communication," observes the lawyer. Anyway. The child was born and in February 2013 was put up for adoption, despite the opposition of the mother (she appealed in June, without a final decision so far) and despite medical advice that mother and child should not be separated. There was also a bureaucratic mix-up: in court papers the child was given the surname of the mother's first husband, and not that of her actual father, a Senegalese national who has also offered to take care of Rose, a request rejected by the court. "It is an inconceivable decision," says Oliva, "beccause all the European directives guarantee the integrity of the nuclear family. The only exception is where there is abandonment, which is not the case here."

Following the birth A was moved to another hospital, still detained under the Mental Health Act, and was allowed to see her daughter once a week. In October 2012 she returned to Italy, partly to gain better legal support (the court-appointed lawyer who had represented her had failed even to give her notice of hearings). From then on until five months ago she was allowed to see her daughter on a daily basis.

Two sets of legal proceedings began in Italy this March. The first to give a negative outcome was the Florence tribunal, which declared it had no jurisdiction since baby Rose was not born in Italy. It made submissions to the high court in Rome. The Rome court offered a small chink of light. While declaring that it had no jurisdiction, because A should have appealed to it immediately after the birth, it declared on October 31st that "it could not recognise the decision of the English court because it was contrary to both Italian and international public law."

The foreign minister, contacted by the lawyers, has made no comment; likewise the Italian embassy and consulate in London, which according to Oliva "has never responded to our request in May." The consul, Massimiliano Mazzanti, has instead declared that he was told of the incident by social services in England.

To resolve this nightmare A now has two options: the pending appeal in England and the Florence tribunal which, her lawyers hope, will add the name of little Rose to the instrument of custody drawn up for her two sisters by her American aunt.


While the general thrust of the Italian account agrees with the facts put forward by Booker, there are a number of points of divergence. There is also the claim, not found in Booker, that the social services lied to the mother about the progress of the adoption: a serious allegation. Booker claimed that the mother was in the UK for only two weeks; the Italian version states that it was in fact for some months. Booker claimed that social services allowed no contact between mother and child, whereas this account makes clear that there was regular contact until five months ago. Indeed, it states that the decision to separate the two and to take "Rose" (given the initial P in the released judgement) into foster care was made against medical advice.

Judge Newton alludes to this, and indeed makes his opinion of the doctors' advice quite plain in paragraph 8:

The District Judge at the early stage gave permission for the Local Authority to withhold contact and I raise that because the doctors appeared to be saying at an early stage in the proceedings that the plan ought to be for P to be placed with the mother potentially in hospital. I was and remain deeply concerned about that. It might have been in the mother's interests but I think the mother, today, would understand that it would not have been in P's interests for that to have occurred. It has been of course of some concern to me because having made the order I did on 12th October concerning the instruction of Dr Winton, a consultant psychiatrist.

A further disagreement between Judge Newton and the doctors treating A is set out in Paragraph 9:

By that stage it was being asserted by the treating doctors that the mother had regained capacity under the relevant test. I have to say that when the mother appeared before me at that time she did not appear to be at all well, and I am surprised that it was being claimed that she had legal capacity . I am critical of the doctors because it appears to me that she was despatched (in deed escorted ) from the UK with undue haste simply because she wished to go back to Italy. I was led to believe that the mother was in a good state and a good frame of mind but frankly nothing could have been further from the truth, because if one looks at the reports of the admitting Doctors in italy , it is clear that the mother when she arrived in Italy was in a very poor state. She should in my view have been assisted here to participate in these proceedings. I know she wanted to go to Italy but by going to Italy any realistic prospect of P returning to her care was diminished substantially. It is for that reason it seems to me that it was a most ill-advised thing to have occurred. I was critical at the time and I remain critical to this day.

The judge here seems oddly confused. The "capacity" in question was not the capacity to care for her child, but the capacity to make decisions regarding her treatment. She was not being discharged willy-nilly into the community, but rather being "escorted" (presumably by medical staff) to Italy where she was admitted, presumably (though the judgement does not specify) to hospital. The treatment she received in Italy, moreover, between October 2012 and February of this year when the adoption hearing took place, had a salutary effect, as the judge acknowledged in paragraph 10:

The good news is that as a result of the mother eventually complying with her medication which she did for some considerable time whilst out there, it is very evident that she is actually extremely well and has given evidence before me. As I said to her during the course of her evidence it seemed to me that she was as clear and articulate, indeed more so than most people I hear from the witness box where English is their first language, and English is not the mother's first language.

This contrasts with the three to four months she spent as a detained patient at psychiatric hospitals in England, at the end of which, by the judge's impression of her and the assessment of the Italian doctors, she was in a "very poor state". Perhaps her return to Italy merely coincided with the improvement in her health rather than directly produced it; but in any event it doesn't appear to have done her any harm.

One thing that the released judgement doesn't address is the plan for the family to move to the United States, with the children placed under the guardianship of A's former sister-in-law, though this would appear to have been considered, only to be rejected, at a subsequent hearing. Booker's account of this was garbled: he implied that the plan was to send the child to live with the American aunt, whereas it now seems that the suggestion is that the whole family should move there. Whether this scheme has met with the approval of the US immigration authorities is uncertain. While the two elder children of American fathers both qualify for US citizenship and A probably has residency at least, Rose's position is likely to be more complicated. But whether that played any part in the court's rejection of the scheme isn't clear.

The question of the child's father is raised, but scarcely considered, both in the released judgement and in the Italian press. The Italian report offers the bizarre detail that his name was left off the court papers because of a bureaucratic error. Although this doesn't seem to have excluded him from proceedings, it's strangely fitting, given that so little thought seems to have been given either to his rights or to his responsibilities as a parent. His offer to assume responsibility for the baby was dismissed as "not, if I may say so, a starter" by a judge who also sniffily notes that "he has failed to take any part except for the fact that he saw both the social worker and the Guardian when they visited Italy, and has written to the court today indicating that he opposes the application of the Local Authority". Newton concludes, again baldly, that there is "no-one within the wider family who today can look after P even though the father attempts to put himself forward." Beyond his unclear immigration status, no evidence is offered in the judgement as to why the judge considers the proposal a non-starter, or what is lacking in his "attempts to put himself forward" as a carer for the child. He is an inconvenient detail to be swatted aside. 

The criticism of Booker's one-sided and significantly distorted presentation of the facts is largely justified, but that doesn't mean that the case of Signora A doesn't raise significant issues. Judge Newton's ruling is a model neither of clarity nor of judicial reasoning; he contradicts himself at various points and his decision seems unsupported by any compelling weight of evidence. These will doubtless be issues for the appeal. Perhaps good reasons can be found as to why it was impossible to transfer her to Italy, despite her express desire, prior to the birth. But it seems on the face of it difficult to see any, given that she seems to have been kept heavily sedated. That would have solved most of the problems that subsequently arose.

One thing the case does clearly demonstrate is the dangers posed by secrecy in the family courts and in the Court of Protection, not just to the administration of justice but to the reputation of the legal system. Where little is known about what actually takes place behind closed courtroom doors horror stories are apt to spread and to be believed.

Nor are the problems imaginary. President Munby has repeatedly acknowledged the inadequacies of the family courts system and in particular the attitude of some social workers. In one case he noted "the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response [by social workers] to orders made by family courts" and complained of "a deeply rooted culture in the family courts which, however long established, will no longer be tolerated". These are strong words indeed: so strong that, had they been voiced by Booker or Hemming a large section of respectable legal opinion would immediately have cried foul.  Indeed, an official of the British Association of Social Workers has accused Munby of, among other things, giving encouragement to the Daily Mail. "Lord Justice Munby’s pledge to ensure greater transparency in the family courts has been heralded as a triumph by those opposed to the current restrictions in reporting on care proceedings, but I was left horrified," she complains. One might almost think she had something to hide.