Bury Metropolitan Borough Council v D

Article 8 ordinarily requires parents to be fully involved in public-authority planning before intervention in family life. Exceptionally, a local authority may lawfully withhold its plan for immediate removal of a newborn where prior disclosure would expose the child to an unacceptable risk of serious physical harm. The threshold is stringent: non-involvement must be justified by the overriding necessity of the child’s interests or be essential to secure the child’s safety. The court must assess the probability and potential seriousness of the harm, together with possible alternatives. The fact that the child is unborn prevents orders under the Children Act 1989 or wardship, but does not prevent anticipatory declaratory relief under the inherent jurisdiction of the High Court.

The local authority applied urgently for an anticipatory declaration concerning an unborn child whose mother was in prison and due to give birth. Its plan was to arrange the child’s removal immediately after birth, initially by police powers and subsequently through an Emergency Protection Order, while withholding that plan from the mother and her partner.

The application was made without notice because disclosure was said to create a substantial risk that the mother would harm herself or the child immediately after birth. The central issues were whether the High Court had jurisdiction to grant declaratory relief before birth and whether withholding the birth plan was compatible with Article 8 of the Convention.

1. Jurisdiction. The court had no jurisdiction under the Children Act 1989 or in wardship while the child remained unborn. It could, however, use the inherent jurisdiction of the High Court to grant anticipatory declaratory relief concerning the lawfulness of a proposed future course of conduct. The court could do so even though the respondent had not been served, where notification would frustrate the protective purpose of the application.
2. Article 8 principle. Article 8 ordinarily requires parents to be fully involved in public-authority planning before intervention. That procedural obligation reflects the substantive protection against unjustified interference with family life. The Strasbourg authorities recognised that emergency action may proceed without prior consultation where urgency or prior warning would deprive the measure of effectiveness, but only after a careful assessment of the impact on the parents and child and of possible alternatives.
3. Applicable threshold. The same proportionality principles governing emergency removal govern prior non-involvement in planning. The proposed secrecy had to be justified by the overriding necessity of the child’s interests or be essential to secure the child’s safety. This was a rare and highly exceptional threshold, requiring compelling evidence of a real risk of serious harm.
4. Application. The evidence showed severe and potentially impulsive violence, a recent attempted suicide, disturbing prison behaviour, the earlier knife incident involving the mother’s child, and expert evidence that disclosure would create a high risk of harm. The probability of harm and the gravity of the possible consequences were assessed separately. Even on a lower probability assessment, the possible consequences were sufficiently grave. Disclosure to either parent would expose the child to an unacceptable risk.
5. Order. The local authority’s proposed course was declared lawful and compatible with Article 8.

First-instance decision. No prior appellate history is stated in the judgment.