Mental Capacity Case

In the matter of DM

Hayden J

Sunderland City Council sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult which contemplated: (i) interference with the mother/baby relationship following the birth which involved some unspecified level of forced separation and, potentially, removal of the child; and (ii) that the mother should not be informed of key aspects of the plan.

The above orders were sought under the Human Rights Act 1998 and the inherent jurisdiction of the High Court.

The application was made on a Friday. Hayden J adjourned it over the weekend because he did not consider that the evidence had been fully marshalled. On Monday, the local authority sought permission to withdraw its application. Hayden J granted permission to withdraw 'without hesitation' because he was far from persuaded of the necessity for or proportionality of the relief sought.

The expert evidence was that the mother had capacity to make decisions about (i) the contact she had with professionals (ii) the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction and (iii) to make decisions about the treatment she should receive following the birth of the baby.

The young woman had given birth on 8 previous occasions and each of those children had been removed from her care and placed for adoption. The mother had also gone into hiding late in her last pregnancy. Relevant clinicians had come to the conclusion in this pregnancy that labour should be induced for the mother's own health. The local authority was understandably concerned that the mother might go into hiding again jeopardising her own health, that of the unborn child and that of the child following birth. The local authority sought to protect the mother and to put in place such protective measures as they could on the birth of the child. Hayden J described the instincts of the local authority as 'laudable' but with a 'paternalistic complexion'. He emphasised that the law was vigorous in protecting the fundamental principle of personal autonomy. He noted that individuals are entitled to take their own decisions, both good and bad and are at liberty to make their own mistakes.

The starting point was that the local authority had an obligation to consult parents in the care planning for their children and/or unborn child.

Hayden J reiterated that in UK law a foetus has no rights of its own until it is born and has a separate existence from its mother. It was a principle that infused the whole of the criminal and civil law in the UK.  Balcombe LJ in Re F (in Utero) (Wardship) [1988] 2FLR 307 had confirmed that the inherent jurisdiction did not extend to the unborn child.

The issue in this case was therefore the future rights of a child, crystallising on birth and the present and existing rights of a pregnant, capacitous woman. In St George's Healthcare NHS Trust v S and R v Collins & Ors, ex parte S [1998] 2 FLR 728 Judge LJ in the Court of Appeal concluded that a capacitous adult should be entitled to decline medical treatment even if her life or that of the unborn child depended on it. The 'powerful elucidation of the law' by Buter-Sloss LJ in Re MB (An adult: Medical treatment) [1997] 2 FLR 426 remained the starting point in all applications:

"… a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The [law] does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth."

The application in this case was based on the landmark decision of Munby J (as he then was) in Re D (Unborn baby) [2009] 2 FLR 313. In Re D, Munby J was not exercising the inherent jurisdiction in relation to an incapacitated adult; he was concerned with the best interests of the baby when born. Munby J emphasised the "wholly exceptional" circumstances in which anticipatory relief would be granted. It was necessary to ensure that it was not only "appropriate and justified', but 'imperatively demanded" in the interest of safety in the period immediately following the birth of a child. It was always to be regarded as "highly unusual" and a "very exceptional step."

Hayden J went on the revisit in summary the exceptional circumstances of the Re D case which included: the fact that the mother was serving a custodial sentence due to a serious assault on her daughter during a supervised contact session; the mother's continuing extreme distress and challenging behaviour including an attempt to take her own life in highly alarming circumstances in her cell; the fact that the mother had expressed the view that her children would be better off dead than in the care of the local authority. He emphasised that Re D was "a wholly exceptional case" and reiterated that the courts and local authorities must be vigilant to ensure that the wholly exceptional nature of the relief was never lost sight of.

Hayden J did not consider that any more recent cases had weakened the test set out by Munby J in Re D. He did not consider that it would be helpful to set out prescriptive conditions but stated that to invoke the declaratory relief initially sought in this case the facts would require a level of 'exceptionality' and would be characterised by the 'imperative demands' and the 'interests of safety' of the new-born baby in the period immediately following its birth.

Hayden J held that the professional instincts in this case were sincere but they were ultimately misconceived. It was possible to keep the mother and baby together in a manner that respected the mutual need each for the other in the period immediately following birth which would have the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court could hear the inevitable applications.

Although the judgment had described the application as misconceived the judged observed that professionals involved in these difficult decisions provided a huge service to the woman and babies they dealt with and society more widely. This case, Hayden J, had illustrated the challenges they faced and the debt we all owed to them.


This case is a useful reminder of the limits of the inherent jurisdiction (albeit as it applies in a rather different context to that jurisdiction as it applies in relation to vulnerable adults) and the wholly exceptional nature of the Re D case with its use of an anticipatory declaration in the interests of a child who has just been born.