The story of an Italian mother who was sectioned under the mental health act, forced to undergo a Caesarean Section and who had her child taken from her to be put into care and then put up for adoption is a harrowing one.
I will say from the outset that I do not assert that Childrens Services applied for the Court order granting an enforced Caesarean under general anesthetic and with force, as per the Judgment by Justice Mostyn
Paradoxically, considering my blogs title, I rarely do diary write ups on stuff I’ve been working on but, declaring my employment interests, neither does John Hemming make the above assertion, His initial write up asserts that the story starts with:
“a pregnant mother visiting the UK for a training course lasting only two weeks’ and ends with ‘her baby being taken through a forcible caesarean and then placed for adoption for the usual spurious reasons that are used”
Nor is it fair, to say John has an axe to grind against Childrens Services. Most care and social workers do extraordinary work in very trying circumstances, but it is quite right to criticise where there is failure, especially in gathering evidence to inform decision making as heart breaking, long lasting and grave of consequence as adoption or invasive surgery.
I quite agree when the current head of the Family Court, Sir James Munby states that “since the abolition of the death penalty the family courts hold the most drastic powers of any tribunal – the power to take a baby away from a mother for life”
Mr Hemming is primarily concerned that the law is followed, that those arguing that a Judge should authorise drastic powers provide evidence of the highest standard and that Justice is seen to be done, family law and the court of protection has to be subject to scrutiny and transparency.
And it is not as though Local Authorities are without their faults - this case from 2012 is an appeal Judgement in the case of two Slovakian Children who had been put up for adoption in the UK. Mr Hemming, myself and Julie Haines, who acts as a Lay Advisor for Mr Hemmings advocacy group Justice for Families assisted the Maternal Grandmother and the Slovak Government in appealing the adoption order and having the Children placed with the Maternal Grandmother.
As you can read, the local authority in this case comes in for a lot of flak in terms of failing to follow the directions of the Appeal Court and general intransigence.
“The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable. We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November”
Its worth noting that the Slovak Authorities in this case were not properly informed or consulted on the future of their citizens and that it was found that the Grandmother had been unduly discarded as an option for custody of the Children.
The children are now under Grandmothers custody in Slovakia instead of adopted in the UK. These points are both important in the case of Ms Pacchieri and I’ll come to that later.
Nor should we absolve the Local Authoritiey of their attitude toward this case, they may not have been party to the Mostyn ruling authorising the Casearean, but they were, according to Queens Counsel, planning to have the baby removed using police powers, against the advice of Doctors that the child and mother should be together in a mother and baby unit,
In fact the order states: “I offered advice to the local authority (which were not a party to or represented in the proceedings, or present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989.”
Whilst I would personally hesitate to use language to suggest that Childrens Services ‘snatch’ Babies for Adoption, one does have to wonder where the Local Authority was coming from and, in the absence of the transcript or Judgement for an interim care order I can only speculate about their intentions, which I shall avoid doing.
The Mostyn Judgement does, however raise a number of concerns – also raised by Birthrights and Dr Nell Munro of Mental Health and Capacity law blog, regarding the accuracy of the evidence presented to the Judge, whether the test for Mental Incapacity met both section 2 and section 3 of the Mental Health Act and the absence of Ms Pacchieri’s views from the case, both that she wished for a natural birth before she lost capacity in the legal sense, and her desire to be with the baby as well as a lack of consideration as to whether the doctors advice regarding risk justified the procedure.
Both the blogs I cite raise grave concerns on all those points better than I could. Chiefly as regards to whether it was properly tested as to whether Ms Pacchieri did or did not have capacity and whether or not Ms Pacchieri was consulted, at all, let alone sufficiently.
As Dr Nell Munro discuss’ in his thoughts on whether Ms Pacchieri did meet the section 3 test of the Mental Health Act, to quote:
“the judgment does not tell us why she met the further requirements of being unable to make a decision under s.3 MCA. To be unable to make a decision a person must be unable to understand, retain, use or weigh or communicate their decision even after all necessary practical assistance has been provided to them. The judgement contains no discussion of what efforts have been made to discuss birth planning with AA, nor of whether she understands the consequences of refusing a caesarean section
This does not mean AA had capacity at the time. Only that the judgement does not communicate that she did not.”
The application was very last minute and rushed needlessly when there had been up to as many as 10 weeks (June 13th – August 23rd) to prepare, it is also evident from the transcript that no one was well briefed – Counsel for the NHS mention a rush leading to one document being printed with missing alternate pages, the QC instructed for the mother, appears to have neither spoken with nor met her and is given documents to read at the hearing itself.
The nature of the late in the day application meant that any delay might increase the risk to the mother and child and would, in my opinion, put undue pressure on a Judge to rush a judgement.
If a birth plan had been initiated before hand and an order sought earlier this could have been handled in such a better way. They had 10 weeks to plan a better course of action and ended up traumatizing the very person they considered so vulnerable, to say nothing of the mental health implications of someone not being told they are about to give birth through an invasive surgery waking up in an unfamiliar place after surgery.
It is also my concern that the NHS diagnosed and were treating Ms Pacchieri for the wrong condition whilst she was in the UK and this may have contributed to her lengthy period, 10 weeks, of illness.
Some have suggested this is based on ‘under-informed speculation’ but it is not. It is based on a reading of both the transcript of the hearing of the 23rd August 2013 and the Judgement of the hearing of the 1st February under Judge Newton regarding adoption.
In Justice Mostyn’s hearing Counsel for the Applicant, Mid-Essex NHS Trust, Miss Burnham, stated:
“My Lord, it is said that she suffers from a schizophrenic disorder, which is psychotic in nature and she is currently under section 3. My Lord, that is as detailed as the identification of the disorder goes. It is in the report of Dr. Adimulam, which is at your clip 4. It is the second document entitled “private and confidential”
Dr Adimulam is the treating consultant psychiatrist in the UK who produced two reports on Ms Pacchieri in August 2012.
It is, however, well established that Ms Pacchieri suffers from a Bipolar Disorder, and, in Judge Newton’s Judgement of 1st February 2013 – with the benefit of 6 months further consideration as well as the fact that Ms Pacchieri has recovered following treatment in Italy – he states 3 times that she suffers from Bipolar and has done so since 2007 and been treated for it since 2008.
Newton does not mention schizophrenia or psychosis and if the medical evidence supported that Ms Pacchieri suffers from this condition, he would have mentioned it.
I am happy to admit I am not a medical expert, but Bipolar Disorder and Schizophrenia are not the same condition. Don’t take my word for it Bipolar UK stressed in a press release on mental health awareness in the workplace that “mental health advocates need to be more specific about different conditions like schizophrenia and bipolar disorder”
They are definitely two separate disorders which differ enough to warrant the NHS giving different sets of treatment advice for Schizophrenia and Bipolar so it is of some concern that the NHS told the Judge Ms Pacchieri suffered (and presumably was treated for) a different disorder from the one Judge Newton states she has had since 2007.
It would also explain why Ms Pacchieri was so Ill whilst under treatment in the UK for 5 months between June and November, but made a rapid recovery between November and February 1st, in time for the Adoption hearing after returning to Italy.
Leaving for Italy may have damaged her case in Judge Newtons eyes, but staying in the UK wasn’t helping her either.
Moreover If Ms Pacchieri was being treated for the wrong condition for the 10 weeks leading up to the Birth, and the Judge relied on an inaccurate diagnosis of “a schizophrenic disorder, which is psychotic in nature” in order to be satisfied that she lacked capacity, then there is the potential she did have capacity or that had she been correctly treated she would have had capacity returned.
I also suspect that this diagnosis would have affected the thinking of the Local Authority when it came to requesting a police presence to remove the child, or when they proceeded to an interim care order and in deciding if the mother was fit to care for the child with help from the family.
There is also the concern that the Italian Authorities, both the Consulate General in London and the Central Authority in Rome (Our equivalent of the Official Solicitor) is entirely absent from consideration in both of the published Judgements.
Ms Pacchieri is an Italian Citizen, habitually resident in Italy and was only here for a two week training course at Stansted with Ryanair. She had either completed or was close to completion of that course and planned to leave the UK shortly.
One has to wonder at what point between June and August it might have occurred to the NHS trust or the Local Authority that it would have been in the mothers best interests if she was repatriated to Italy to give birth, surrounded by her family, friends and doctors and social workers who were familiar with her condition and would have been caring for her during her pregnancy before she arrived in the UK.
One also has to wonder what implications for Human Rights violations under European Treaties this throws up.
Here Essex County Council come in for some flak, their timeline of events includes a comment that “Mother applied to Italian Courts for order to return the child to Italy in May 2013. Those courts ruled that child should remain in England”
In actual fact Essex have omitted the fact that the lower court in Florence, to which that refers, found itself incapable of making a judgement and passed the case to a Tribunal in Rome, which ruled, either in September or October, we are still having the full Judgement translated into English and I will endeavor to link to it, but it appeared in the Italian press some days ago (I will not link to that report because it names the child) “that it cannot recognise the ruling of the English court because it is contrary to Italian and international norms of public order”
I can understand spin, but leaving out that the Italian Courts consider this case against international law, and leaving the impression that the Italian Courts think that the child should ‘remain in England’ serves only to give a false impression, whether that is intended or not.
Ms Pacchieri had rights under the Vienna Convention on Consular Relations to have consular support. This Convention allows someone detained by another country to have access rights to Consular support. The Courts in England also had a responsibility under Brussels II BIS Council Regulation (EC) No 2201/2003 to consider ”Transfer to a court better placed to hear the case” under article 15, Under Article 55 UK Central Authorities and Courts are required to co-operate with other Central Authorities and Under Article 56
“Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.”
There is some confusion as to when the UK Local Authorities contacted the Italian Consulate General or the Italian Central Authority, we have had contact with the Italian Central Authority (and that is not the same as the Court in Florence) this week who were not aware of the case, and given there is no record of the Italian Consulate General visiting or attempting to intervene in the case from June 2012 until she returned to Italy in October or November under guard there is a real concern as to whether international law has been respected.
I have been in touch with the Italian Consulate and made an FOI request to Esssex County Council to establish the facts, but, going back to the Slovakian case I highlighted above, one of the reasons that appeal was won was due to a lack of contact between Surrey County Council and the Slovakian Central Authority, which led to the Slovakian Government intervening in the case.
It is also probable that this, together with the Rome Tribunal Judgement, is why the Italian Government has been reported as having hired solicitors with the intention of intervening in this case.
Like the Slovakian example, we could see another European Country go to court over UK adoptions policy and the actions of Social Services.
To add to the concern on this point is a 2011 FOI response from Essex County Council regarding non UK children in care (Ref ECC-015030-11) I’ll add the questions and response to Essex’s policy toward notifying countries of non UK national children in care verbatim but the essential answer is We do not have any contact with High Commissions or Embassies
“1. What is the Local Authorities policy for notifying High Commissions and Embassies (their Consular Welfare Sections) regarding non-UK national children that are?
A. Taken in to Care
B. Being Adopted
2. What is the Local Authorities policy for enabling High Commissions and Embassies Consular Welfare access visits to non-UK children in its care and prior to adoption?
3. Has the Local Authority sought any legal or other advice from the Foreign and Commonwealth Office regarding High Commissions and/or Embassies Consular Welfare visits to non UK children in its care?
4. Has the Local Authority refused any High Commission or Embassy Consular Welfare visits to non UK children in it’s care and if so how many?
We do not have any contact with High Commissions or Embassies.
6. How many High Commissions and Embassies Consular Welfare Sections
in these cases as in 5. A. & B. above were:
B. Were not notified To High Commissions and Embassies Consular
We do not have any contact with High Commissions or Embassies.”
These are non UK national Children being put into care and adopted in England. As far back as 2011 Essex has not been notifying those countries High Commissions or Embassies of what they are doing to non UK national Children.
This case is, on a human level, tragic, terrifying and worrying. It also draws up concerns on a procedural and legal level. It is also, worryingly, not a one off.
Was it right to publish? Regardless of the accuracy of the initial reports about who obtained the initial order allowing the Caesarean this case throws up a multitude of issues, from how we treat people Judged without capacity to how court hearings held in secret operate, to the rights and wrongs of a care and adoption system which needs to treat the people involved with the utmost sensitivity.
This story is not about press accuracy, its about how we treat our fellow human beings.
Justice should be seen to be done, and it should be open to scrutiny, yet the Court of Protection and the family courts often operate in the dark. Another recent example is the case of Wanda Maddicks in the court of protection, imprisoned for contempt of court without a public judgement or even her name being published, quite wrong to jail someone in secret, one might consider.
The evidence presented to Justice Mostyn urging a Caesarean and authorising force was presented last minute, hours before the Caesarean was due to take place, despite there being 10 weeks to consider what course of action was best for the mother or child, leaving no time to properly consider what must be considered an extremely grave and harrowing decision.
Asking Mostyn to Judge the day before the operation, allowing no time for scrutiny, looks like the UK institutions trying to bounce a decision. The NHS and Childrens services had June till August to get it right.
This would appear to be evidence of the ““recurrent inadequacy” and “sloppy practice” Justice Munby, the current head of the family division said in September this year, is all to common in the family courts and court of protection.
“We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.” - Munby
This is not a one off. Judge’s make these decisions of utmost consequence all the time, I’ve been involved in a handful of them personally and seen Local Authorities introduce evidence at the last minute, refuse to co-operate with orders, mangle the facts and, in the Slovakian case, the Local Authority even confused a family friend acting as a translator, of being the mother in the case when asserting that she had broken a court order regarding contact.
These are decisions of a matter akin to life and death, publishing the Judgements, anonymised, in this case was important to allow public discussion of the rights and wrongs of our Social and Adoption systems, and how we treat those with mental health problems judged unable to decide for themselves.
In broad policy and human terms this case has worried me greatly since I learnt of it last week. It is, perhaps, time to open up the system and take a good look at whats going wrong.
*This article is my personal view and does not necessarily reflect the view of my employer