DM, Re (Rev 1)

Anticipatory declaratory relief authorising separation of a mother and newborn, or concealment of the plan from her, is available only in wholly exceptional circumstances. The facts must make the relief appropriate, justified and imperatively demanded in the interests of the newborn’s safety immediately after birth. The remedy is highly unusual and draconian because it restricts personal autonomy.

A vulnerable adult must not be treated as lacking capacity merely because professionals doubt her parenting ability. A capacitous pregnant woman’s autonomy remains fundamental, and the unborn child has no independent rights before birth. Local authorities must consult and involve parents in care planning. Where safety can be protected by a carefully managed plan preserving contact until the appropriate court can decide the future arrangements, anticipatory relief is unnecessary and disproportionate.

Sunderland City Council applied under the Human Rights Act 1998 and the inherent jurisdiction for declarations sanctioning a birth plan concerning a vulnerable pregnant woman. The plan contemplated forced separation from the baby after birth, possible removal, and withholding important information from the mother.

The mother and her partner were vulnerable adults, but assessments concluded that she had capacity to make decisions about professional contact, induction and post-birth treatment. The local authority was concerned about the mother’s previous history, including earlier children being removed and a previous birth away from professional supervision.

After an adjournment to allow fuller evidence and consideration, the local authority sought permission to withdraw the application. The central issue was whether the exceptional anticipatory jurisdiction identified in Re D (Unborn baby) was necessary and proportionate on these facts.

1. Application withdrawn. Permission was granted without hesitation because the court was not persuaded that the proposed relief was necessary or proportionate.
2. The concept of vulnerability must not be conflated with incapacity. Assessments by the treating obstetrician and a consultant forensic and clinical psychologist established that the mother had capacity to decide about professional contact, the management of the birth, induction and post-birth treatment.
3. The law provides protective mechanisms for vulnerable people, but it also protects personal autonomy. The Mental Capacity Act 2005 begins with a presumption of capacity requiring cogent evidence before it can be displaced. A capacitous adult may make decisions which others regard as unwise.
4. An unborn child has no independent rights in UK law before birth. The relevant rights of the child arise on birth, whereas the pregnant woman’s rights are present and existing. The court relied on Paton v British Pregnancy Advisory Service Trustees, Re F (in Utero) (Wardship), St George’s Healthcare NHS Trust v S and R v Collins & Ors, ex parte S and Re MB (An adult: Medical treatment).
5. Following Re D (Unborn baby), anticipatory declarations authorising conduct after birth remain a very exceptional remedy. The circumstances must display the required level of exceptionality and be characterised by an imperative demand, in the immediate post-birth period, for the newborn’s safety. The court declined to formulate a more prescriptive test.
6. The circumstances in NHS Trust 1 & NHS Trust 2 v FG were materially different and were not understood as weakening the test in Re D. Respect for and active promotion of the autonomy of an incapacitated adult remained equally important.
7. Local authorities must consult and involve parents in care planning. A managed arrangement could preserve mother and baby together immediately after birth, while protecting the baby and maintaining both parties’ rights until the Family Proceedings Court could determine the necessary applications. The proposed intervention was therefore misconceived.

The judgment concerns a first-instance application in the High Court. The local authority’s application was initially adjourned to allow fuller evidence and professional consideration, after which permission to withdraw it was granted.