TWO mothers suffered a breach of human rights when they were denied the chance to block moves by social workers to take their new-born babies into care.
The women, a teenager and a former prostitute, had been told that child protection orders would be sought from a sheriff immediately after they had given birth.
Each had a lawyer ready to appear on her behalf, but the hearings went ahead without any notice being given, and orders were granted in respect of the babies, boys who were only hours old.
In a ruling at the Court of Session in Edinburgh which could impact on similar cases, a judge said that depriving a parent of the right to be heard could be allowed in emergencies.
However, Lord Brailsford found that there had been no great urgency in the cases of the two women, and he said: “In the circumstances, I am satisfied that a failure to involve (the mothers) in the process infringed their rights under...the European Convention on Human Rights.”
The court heard that the orders had remained in force for only a short time and that they had been superseded by further procedure.
The first mother, NJ, 18, had a previous child which, due to lack of parental care, had been fostered at a week old. While pregnant with her second child, she and her partner had failed to work with an organisation, Family Matters, in relation to the needs of a new baby, and it was decided at a case conference that Renfrewshire Council would seek to take the child into care at birth by a child protection order (CPO).
The second woman, EH, had learning difficulties and had worked as a prostitute, had used drugs and had a history of homelessness. She had been assessed as not having the capacity to care for a child. Two previous children had been put into the care of their grandmother.
During EH’s third pregnancy, Glasgow City Council, determined to seek a CPO following the birth.
The babies were born on 17 and 19 July, 2010, and sheriffs granted CPOs at hearings of which neither woman was given notice and at which neither was represented.
Lawyers for the mothers sought judicial review of the making of the orders, arguing that there had been a breach of article 8 - the right to respect for family life - of the European convention.
Lord Brailsford said that in NJ’s case, the child was in the safety of the hospital being cared for by staff when the CPO was made. NJ had been participating and no concerns had been expressed about her performance. The baby was in a secure cot and staff would have called the police if NJ had tried to take him from the hospital.
EH had been physically incapacitated as a result of surgery following the birth when the application for the CPO was presented to the sheriff. The baby was in hospital under the care of nursing staff.
“At the time applications were made, each (mother) wished to be heard, and presumably oppose, the making of orders. Both had instructed legal agents who were briefed and in a position to present their client’s position to a court,” said Lord Brailsford.
“There was no dispute that the connection between a mother and child created at birth amounts to family life protected by the provisions of article 8 of the ECHR. Further, it was not disputed that in emergency situations it would not amount to a violation of a parent’s rights under article 8 to take a child into care without hearing the parent...”
There had to be a compelling case for applying for orders without giving the parent notice, he added, and in the current cases, both women had been informed of the intention to seek orders, so there was no risk involved in telling them of, or permitting representation at a hearing.
“The children were secure in hospital...both parties were prepared and ready for a hearing. There was no immediate risk or threat to the children. A hearing could in any event have been arranged expeditiously by the sheriff court if required,” said Lord Brailsford.