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Bury Metropolitan Borough Council v D (2009) EWHC 446 (Fam)

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It was lawful for the local authority to remove a child from its mother immediately at birth without informing the mother of its intentions.

FLW

Family Law Week have kindly agreed for their case summary to be reproduced below.

Judgment concerning whether a local authority’s plan to remove a child from its mother immediately at birth without informing the mother of their intentions was lawful. A declaration that their actions were lawful was granted.

The local authority was seeking support of their plan because they were concerned that the mother, who had shown herself to be violent to a previous child, would present a risk of serious harm to the child if she knew the child would be removed at birth. The mother was in labour during the hearing. The key question identified by Munby J was

"whether, despite the requirements of Article 8 of the European Convention, it is lawful for the local authority not to involve the mother and her partner fully in the birth planning for her future child as would normally be required."

In deciding that question Munby J first had to consider the jurisdiction. He concludes that as the mother was still in labour it was not a welfare question under the Children Act nor one of capacity under the Mental Capacity Act 2005. He therefore decided he had jurisdiction through the inherent jurisdiction of the High Court to grant anticipatory declaratory relief. He also concludes, following the relevant authorities, that he does have jurisdiction to grant a declaration if it is “in the public interest and for the proper protection of a public authority” provided the facts of the case justify such a declaration. In the instant case he decides that the facts meet the required extreme standard to justify this "very draconian and, I stress, highly exceptional course of conduct"

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FLW summary