A Local Authority v C

The court may use its inherent jurisdiction to make an anticipatory declaration concerning a child who has not yet been born, provided that the declaration takes effect only upon birth. Non-involvement of a parent in planning for immediate removal is permissible only in highly exceptional circumstances. The court must be satisfied that removal is necessary and proportionate, that it is required by the overriding necessity of the child’s interests or is essential to secure the child’s safety, and that no less radical order would achieve that end. Article 8 requires attention both to the substantive justification for interference and to procedural involvement of the parent. Where a proposed representative cannot withhold the substance of the application from the client without consent, appointing that representative will not necessarily provide a workable safeguard.

The local authority applied under the court’s inherent jurisdiction for anticipatory declarations concerning the removal of a baby immediately after birth. The mother had longstanding mental health difficulties, limited intellectual functioning, substance misuse, a history of harm to a previous child, and increasingly volatile behaviour during pregnancy. Professionals considered that warning her of the proposed removal would increase the risk of inadvertent injury during separation.

The mother had not been served and was not represented. The court considered whether it had jurisdiction to act before birth, whether the proposed non-disclosure and immediate removal were compatible with Article 8, and whether the Official Solicitor could properly act without informing her of the application.

1. The court had jurisdiction under the inherent jurisdiction to make an anticipatory declaration concerning conduct to be undertaken immediately upon the child’s birth. The Children Act 1989 could not itself authorise an emergency protection order or interim care order in respect of an unborn child.

2. Parental involvement in planning is the normal position, but exceptional circumstances may justify a without-notice application and non-involvement. The relevant inquiry was whether non-involvement was justified by the overriding necessity of the child’s interests or was essential to secure the child’s safety. The court also had to consider necessity, proportionality, and whether a less radical order would achieve the essential protective purpose.

3. The evidence established an imminent, serious and present danger to the baby after birth, particularly a risk of inadvertent injury if the baby had to be taken from the mother. Removal immediately upon delivery was the only option that safeguarded the child’s interests. The court therefore made the anticipatory declarations sought, including that minimum necessary force could be used and that the police could assist under section 46 of the Children Act 1989.

4. The mother would retain an opportunity to be heard on the local authority’s proposed application for an emergency protection order or interim care order, which had to be prepared in advance and lodged at the first possible moment after birth.

5. The Official Solicitor, or another legal representative, could not be required to withhold information about the application from the mother without her consent. The court considered that the mother probably understood the nature of the application and the intended removal, so informing a representative would risk disclosure and frustrate the protective order.