X County Council v M & Ors

The withholding of a local authority’s care plan from a parent is permissible only in an extreme case where it is justified by the overriding necessity of the child’s interests or is essential to secure safety. A reporting restrictions order is similarly exceptional and requires necessity, intense comparison of the competing rights under Articles 8 and 10, and a proportionate result. Neither Convention right has presumptive priority. An interim care order for a newborn requires reasonable grounds for believing that the conditions in section 31(2) of the Children Act 1989 are met, together with exceptionally compelling reasons for continued separation.

The local authority sought permission under the inherent jurisdiction not to disclose to M, who was detained under section 3 of the Mental Health Act 1983 and suffering a serious psychotic illness, its plan to remove her unborn child at birth. It also sought a reporting restrictions order. After C’s birth and removal under an emergency protection order, the local authority applied for an interim care order. The central issues were whether non-disclosure and reporting restrictions were necessary to protect M and C, and whether the evidence established the threshold for continued separation under section 31(2) of the Children Act 1989.

1. The court granted permission under the inherent jurisdiction not to disclose the care plan before birth. Applying Re D (Unborn Baby) [2009] 2 FLR 313, the court treated non-disclosure as an extremely unusual and highly exceptional step, justified only where overriding necessity or essential safety required it. M’s deteriorating psychosis, persecutory delusions, lack of treatment compliance, threatening behaviour and absence of support created a very real risk of physical harm to M or C if the plan were disclosed.
2. The reporting restrictions order was granted. Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 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, time-limited prohibition on reporting before birth was necessary and proportionate. It was later discharged once its purpose had expired.
3. For the interim care order, the court considered the rights of C, M and F, the paramountcy principle and welfare checklist in section 1(1) and section 1(3) of the Children Act 1989. In a conflict between the child’s rights and those of a parent, the child’s rights prevail: Yousef v The Netherlands [2003] 1 FLR 210. The taking into care of a newborn requires extraordinarily compelling reasons: P,C & S v UK [2002] 2 FLR 631 and K&T v Finland [2001] 2FLR 707.
4. Section 38(2) required reasonable grounds for believing that the circumstances in section 31(2) existed. On Dr Z’s evidence, the court found that C would be at risk of physical and emotional harm in M’s care and that continued foster placement under an interim care order was necessary. The court also regarded an up-to-date report from M’s treating consultant psychiatrist as vital and considered the proposed delay in assessing contact unacceptable.