The Solicitor - The FindLaw UK Life, Family and Workplace Law Blog

Adoption: Legal storm after social services remove child forcibly from womb

Social services in Essex are facing an international legal row after obtaining legal permission to remove a child from the womb of a mother via caesarean section, reports The Telegraph.

A legal and ethical row has erupted over the weekend, after it emerged that social services in Essex forcibly sedated a pregnant woman and removed her child by caesarean section to take into social services care.

The council in question claims that obtaining the High Court order to have the baby removed during an operation was in the best interests of the Italian mother, who they say had suffered an acute psychiatric event whilst on holiday in the UK.

The incident occurred back in August 2012 and the baby, who is now 15 months old, remains in the care of Essex social services.

Now the social services are facing an international legal row, after rejecting the Italian mother's request to have her baby restored into her care.

The Italian woman claims to have made a full recovery and believes that it is in the child's best interest to be returned into her care.

The Italian woman's UK-based lawyer told The Telegraph that the case was unprecedented.

"I have never heard of anything like this in all my 40 years in the job," said Brendan Fleming, representing the unnamed Italian mother.

"I can understand if someone is very ill that they may not be able to consent to a medical procedure, but a forced caesarean is unprecedented," he added.

Social services

The case raises interesting questions about the extent of the power of social services to intervene in such cases.

Commentators have questioned the logic of intervening so immediately and directly in the case and are asking whether a more appropriate outcome would have been to involve Italian social services earlier in the case, so that care of the infant would be passed on to them.

It is unclear at this stage whether the situation that social services were faced with demanded such an immediate intervention, although the fact this has almost never occurred in the past perhaps indicates that alternative outcomes were available.

The issue of social services' powers is to be raised in Parliament this week, with the MP John Hemming claiming that this particular case highlights potential problems with the system when a pregnant woman's mental capacity is under question.

Mental capacity

The Mental Capacity Act 2005 is the main statute concerning people's ability to make decisions for themselves.

According to the Act everyone aged over 16 is deemed to have capacity until proven otherwise and should be given all help practicable to make their own decisions. People are also free under the Act to make unwise decisions, providing they have the capacity to do so.

Capacity is decision and time specific, so assessments about an individual's capacity should be ongoing and should relate only to the specific issue in hand.

Capacity is tested using a two-stage approach. First it is necessary to assess whether the person has an impairment of mind or brain that might affect how their mind or brain works, and then it is necessary to assess whether that impairment means that they cannot make a specific decision at a specific time.

If a person lacks capacity, then it is for others with a responsibility or duty of care to make decisions for that person in their best interests.