Without in any way intending disrespect to our numerous journalist readers, we usually wish only to report cases where we have a transcript of a judgment, as opposed to relying upon press coverage. We make two exceptions, however, in this issue.
The first is to make brief note of this story that has been reported in a number of places, including the Sunday Telegraph on 30 November 2013 and the Daily Mail on 1 December. The headlines in the press are distinctly alarmist, and– it would appear – unfortunately not entirely accurate, and we would wish to be able to report this story by reference to the transcript of the actual Court of Protection proceedings, which appear to have taken place in August last year. We cannot do so at this stage, although there is a judgment from 1 February 2013 in the proceedings relating to the child which sheds a little light on matters. A statement of facts has also been issued by Essex County Council. NB, what follows is based on our best understanding of the position as at 3 December 2013.
It would appear, from the judgment and the statement of facts, that the woman in question was Italian, with two previous children. She had had problems with her mental health since 2007, and there were admissions to psychiatric hospitals in Italy. As of 2011, her two children were in the care of their grandmother, and proceedings relating to the children were on foot in 2012 when the mother came to England. The woman, whom it appears suffered from bi-polar disorder, became very unwell during a work- related visit to England in 2012, a visit she undertook whilst pregnant. On 13 June 2012 she was detained under s.2 and subsequently s.3 of the Mental Health Act. She was profoundly unwell. The relevant NHS Trust, issued proceedings in the Court of Protection, for permissions to deliver her unborn baby by Mostyn, who apart from giving various directions in relation to the Local Authority and others, gave permission for the birth by way of caesarean section.” The media reports suggest that the order authorised the forcible sedation of the woman for purposes of carrying out the Caesarean section, although we wait to see theactual order made. The local authority issuedproceedings upon the birth of the child, an interim care order was granted and has beenrenewed ever since. The mother then returnedto Italy in circumstances which troubled the Circuit Judge in February – as he noted at paragraph 9 of his judgment dealing with a hearing in the care proceedings in October 2012:
“By that stage it was being asserted by the treating doctors that the mother had regained capacity under the relevant test. I have to say that when the mother appeared before me at that time she did not appear to be at all well, and I am surprised that it was being claimed that she had legal capacity. I am critical of the doctors because it appears to me that she was despatched (in deed escorted) from the UK with undue haste simply because she wished to go back to Italy. I was led to believe that the mother was in a good state and a good frame of mind but frankly nothing could have been further from the truth, because if one looks at the reports of the admitting Doctors in Italy, it is clear that the mother when she arrived in Italy was in a very poor state. She should in my view have been assisted here to participate in these proceedings. I know she wanted to go to Italy but by going to Italy any realistic prospect of P returning to her care was diminished substantially. It is for that reason it seems to me that it was a most ill-advised thing to have occurred. I was critical at the time and I remain critical to this day.
The mother’s mental health then improved substantially (it appears because she complied again with her medication), and she then taking active steps to bring about the return of her child. The care proceedings concluded on 1 February 2013. The mother then applied in May 2013 to the Italian Courts for order to return the child to Italy. Those courts ruled that child should remain in England. In October 2013 Essex County Council obtained permission from the County Court to place child for adoption.
We will not address the case further absent a transcript of the judgment of the Court of Protection proceedings (which we are taking steps to pursue), save to note that the question of the authorisation by the Court of Protection of the medical treatment of those habitually resident other than in England and Wales upon the basis of presence alone raises some jurisdictional questions that are not entirely straightforward. In particular, treatment of the nature of that which appears to have been undertaken in this case can only properly be done where the matter is urgent (paragraph 7(1)(c) of Schedule 3 to the MCA 2005). Although the UK has not ratified the 2000 Hague Convention on the International Protection of Adults in respect of England and Wales, Schedule 3 effectively implements the Hague Convention in English law. The approach of the Court of Protection has therefore been to interpret the provisions of Schedule 3 to the MCA 2005 as if the Hague Convention were binding, and to have to regard to the Explanatory Report to the 2000 Hague Convention (see Re M  EWHC 3590 (COP), a decision of Mostyn J’s). ‘Urgency’ for purposes of the Hague Convention purposes is addressed in paragraph 78 of the Explanatory Report thus:
“A situation of urgency arises where the situation, if remedial action were only sought through the normal channels of Articles 5 to 9 [i.e., crudely, basing jurisdiction upon habitual residence, with the possibility of transferring consideration to a court better placed to consider the adult’s interests], might bring about irreparable harm to the adult or his or her property. The situation of urgency therefore justifies a derogation from the normal rule and ought for this reason to be construed rather strictly. In medical matters particularly, Article 10 [founding jurisdiction on the basis of presence and urgency] must not be used as general justification for the jurisdiction of the authorities of the State where the adult is present. An example which has been given is termination of the pregnancy of a young incapacitated woman. Although such an operation necessarily has to be performed within a certain time-limit, this is not normally a case of urgency of the kind covered by Article 10. In this field, some delegations would have liked to see jurisdiction of the place where the adult is present, but the rejection of the proposals to that effect cannot justify abuse of jurisdiction in case of urgency.”
Whilst we have no reason at all to doubt the propriety of the judgment made by the Court of Protection in this case, Alex for one would be particularly interested to see what, if any, discussion was had before the Court as to its jurisdiction over a person whom it appears from the press reports was clearly habitually present in Italy at the time the orders were sought and obtained.