North Somerset Council v LW & Ors

The inherent jurisdiction may permit temporary non-disclosure of a local authority’s plan to remove a child at birth only in an extreme and highly exceptional case. The order must be proportionate and essential to secure the child’s safety.

A reporting restrictions order requires an intense focus on the competing rights under Articles 8 and 10. Neither right has presumptive weight. An interim care order for a newborn requires extraordinarily compelling reasons and reasonable grounds for believing that the child is at risk of significant harm.

The local authority applied for permission under the inherent jurisdiction not to disclose its plan to remove an unborn child at birth. The application arose from concerns about the mother’s serious mental illness, volatile behaviour and the risks associated with childbirth and the child’s immediate care.

Following the child’s birth, the local authority sought an interim care order and continuation of a reporting restrictions order. The court had to determine whether non-disclosure, reporting restrictions and continued public care were justified, having regard to the parties’ Convention rights and the statutory requirements for an interim care order.

1. Non-disclosure under the inherent jurisdiction. The order sought was at the extremity of what was permissible under the European Convention and was justified only by the overriding necessity of the child’s interests or where essential to secure the child’s safety. The court applied the approach identified in Re D (Unborn Baby) [2009] 2 FLR 313.
2. The circumstances were extreme. Relevant factors included the mother’s serious mental illness, inconsistent treatment compliance, recent deterioration, history of violence and abuse, learning difficulties, low IQ, limited co-operation with professionals, lack of experience of caring for a newborn and the absence of an identified safe family carer. Disclosure created a very real risk of harm to the mother and a very serious risk of physical harm to the child. Non-disclosure was proportionate and essential to secure the child’s safety.
3. Reporting restrictions. Articles 8 and 10 were engaged. Following Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593, the court conducted an intense focus on the comparative importance of the competing rights. Neither Article had presumptive weight. The short-term restriction was necessary and proportionate before birth, but there was no continuing necessity to prevent anonymised reporting after birth. The order was therefore later discharged.
4. Interim care order. The court applied the paramountcy principle and welfare checklist in section 1 of the Children Act 1989, together with section 38(2). Although taking a newborn into care is an exceptionally harsh measure requiring extraordinarily compelling reasons, there were reasonable grounds for believing that the child was at risk of significant harm under section 31(2). The child could not safely or adequately be cared for by the mother at that time.
5. Having regard to the competing Convention rights, the court treated the child’s rights as prevailing where they conflicted with those of a parent, following Yousef v The Netherlands [2003] 1 FLR 210. An interim care order was made and the case was managed towards a final hearing within 26 weeks.