Judge: Hedley J
Citation:  EWHC 2190 (Fam)
Summary: A 27-year-old woman with significant learning disabilities was pregnant with her fourth child. Her previous children had been placed for adoption and the local authority planned to similarly accommodate the newborn under a voluntary agreement with the mother pursuant to section 20 of the Children Act 1989. For such an agreement to be lawful, the parent must have the requisite capacity to decide whether to consent in the light of the Mental Capacity Act 2005.
On the day of her emergency hospital admission, the mother was confronted with three key decisions: (1) whether to consent to life sustaining surgery; (2) whether to accept pain relief (including morphine to which she thought she was allergic); and (3) whether to consent to the accommodation of her child in local authority care. She consented to the first, belatedly agreed to the second, but initially refused to consent to the third. But when the social worker returned later that same day, the mother – by then on morphine – consented and the child was removed. Mr Justice Hedley agreed that the child’s welfare required her to be taken into care and approved the local authority’s concessions that the Article 8 rights of both mother and child had been breached because consent should not have been sought that day in the aftermath of birth, and the removal was a disproportionate response to the risks that then existed.
So far as the section 20 agreement was concerned, if the mother lacked capacity when she consented it would have been invalid and the removal unlawful. His Lordship reiterated that capacity was issue and situation specific, so being able to decide about surgery and pain relief did not indicate that she could decide about the removal of her child. The fact that she might be able to make that decision before the birth or sometime after did not mean she could do so on the day of birth. Moreover:
“39. Capacity is not always an easy judgment to make, and it is usually to be made by the person seeking to rely on the decision so obtained. Sometimes it will be necessary to seek advice from carers and family; occasionally a formal medical assessment may be required; always it will be necessary to have regard to Chapter 4 of the Code of Practice under the 2005 Act…”
Even where there was capacity, “it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights” (paragraph 28). In this case, the mother’s consent may not have been properly informed because (a) she was never told that a continued refusal of consent would result in the child staying in hospital with her for another day or two and (b) she was told that the removal was only a temporary arrangement, despite everyone else knowing that this was highly unlikely (paragraph 43). In relation to fairness, his Lordship added:
“44. I am not sure that the court can say much about fairness on the facts of this case in the light of the local authority’s concessions. Clearly a social worker must have regard to the vulnerability of the parent, her previously expressed willingness or otherwise to consent, the magnitude of the decision and its consequences for the mother and the actual circumstances of the mother as and when consent is sought. In this case the failure to encourage the mother to speak to her solicitor may also have affected fairness. It is important to emphasise that whilst the mother should know the plan of the local authority, willingness to consent cannot be inferred from silence, submission or even acquiescence. It is a positive stance.”
Comment: Although this was not a Court of Protection case, his Lordship’s comments on assessing mental capacity are of more general application and therefore transferable. That a person’s capacity is both decision and time specific and the need to identify who should assess capacity serve as important reminders. Moreover, amongst the guidance given, it was stated that “[e]very social worker obtaining [consent under a section 20 agreement] is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.” Again, such a duty may be equally applicable to all those responsible for assessing others’ capacity.
The Article 6 requirement for fairness in the seeking of a person’s consent is also of interest and would seem relevant to, for example, best interests decisions taken to remove someone lacking capacity from the care of others. It is also likely to be further explored in Court of Protection proceedings.