Background

In CA (A baby) Re [2012], a local authority relied on section 20 of the Children Act 1989 to remove a newborn child from her mother, M, who was assessed as having no parenting instincts. M was unwell following the birth and hospital staff were concerned about the section 20 agreement given her condition and expressed this to the social worker. At first M refused consent and was re-approached after she was given morphine. The social worker encouraged her to agree as did her partner and friend; M did so and the child was removed.  

Issue and decision

While the local authority wanted the baby to be adopted, M sought her immediate return.  

The court decided that it would be in the best interests of the baby to be placed for adoption. However, the section 20 consent should not have been sought on the day the baby was born. The judge expressed surprise that the social worker concluded that M had capacity to consent and determined that the consent was not properly informed. The court also held that, the removal of the baby was not a proportionate response to the risks that existed. The local authority accepted they had breached the Article 8 ECHR rights of both M and her baby. The court concluded that “[t]he use of section 20 must not be compulsion in disguise” and “[a] willingness to consent cannot be inferred from silence, submission or even acquiescence”.  

Relevance for NHS trusts

The key emphasis of the judgment is that social workers are under a personal duty to ensure that a mother giving consent to have her child accommodated under section 20 has the capacity to do so. This is to be determined considering all current circumstances and the questions raised by section 3 of the Mental Capacity Act 2005.

Beyond this the consent must be fully informed. For example, the mother must understand the consequences of her consent or refusal. Finally, the social worker needs to be satisfied that the giving of the consent and the removal of the child is fair and proportionate.

This case highlights the need for midwives and health visitors in hospitals or community settings to be aware of the role and duties of social workers in this context. Midwives and other health practitioners have a role to play in raising concerns regarding a mother’s capacity with social workers. They should, if concerned, query the validity of a section 20 agreement where capacity is in issue and also ensure that, if a baby is to be removed from their mother, there is lawful authority to do so. This would usually be via valid consent from the mother; the police exercising their 72 hour powers under the Children Act 1989 or the local authority obtaining an interim care order or emergency protection order.