Re CA (A Baby); Coventry City Council v C  EWHC 2190 (Fam),  MHLO 110
The mother in this case consented to life-sustaining surgery and pain relief during childbirth; on the day of birth she initially refused to consent to the local authority accommodating her daughter under Children Act 1989 s20 but later, after morphine and encouragement, consented. (1) Detailed guidance, approved by the President of the Family Division, was given for social workers in respect of obtaining s20 consent from a parent to the removal of a child immediately or soon after birth, including the following: (a) the social worker is under a personal duty to be satisfied that the person giving consent has capacity; (b) consent must be fully informed; (c) the obtaining of such consent and the subsequent removal must be both fair and proportionate. (2) Capacity is issue- and situation-specific: in this case the fact that the mother could make decisions about surgery and pain relief did not indicate that she could make decisions about the removal of her child; the judge seriously doubted the social worker's assessment that she had such capacity. (3) There was no informed consent because (a) the mother was never told that continued refusal of consent would result in the child staying in hospital with her for another day or two, and (b) she was told that removal was only a temporary arrangement when it was highly unlikely to be anything of the sort. (4) In relation to fairness, the local authority had settled an HRA damages claim, accepting that (a) s20 consent should not have been sought on the day it was, and (b) removal was not a proportionate response to the risks that then existed. (5) The court made the care order and (adoption) placement order which the local authority had sought, as the case for that was overwhelming.
45. In the light of all this can the court offer any guidance to social workers in respect of obtaining consent under Section 20 from a parent to the removal of a child immediately or soon after birth? The court can but must be astute to avoid excessive prescription as no such guidance can prevail against human capacity to produce wholly unforeseen situations.
46. The following can perhaps be offered as the more important aspects –
- (i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.
- (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.
- (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother's capacity at that time to use and weigh all the relevant information.
- (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.
- (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:
- (a) Does the parent fully understand the consequences of giving such a consent?
- (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
- (c) Is the parent in possession of all the facts and issues material to the giving of consent?
- (vi) If not satisfied that the answers to a) – c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.
- (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.
- (viii) In considering that it may be necessary to ask:
- (a) what is the current physical and psychological state of the parent?
- (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
- (c) Is it necessary for the safety of the child for her to be removed at this time?
- (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
- (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.
- (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.
Before: Hedley J
Miss Lorna Myer, QC (instructed by Coventry City Legal Department) for the Applicant
John Vater QC and Miss Heledd Llwyd Williams (instructed by Kundert Solicitors LLP) for the Mother (C)
Mr. Michael Keehan QC and Mr Robin Lewis (Instructed by Varley Hibbs Solicitors) for the Children
Miss Alison Johnson (Children's Guardian, CAFCASS, Coventry)
Coventry City Council v C, B, CA and CH