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Family Law

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Court of Protection Practice and Procedure Conference 2016

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04 DEC 2013

ENFORCED CAESAREAN/CARE PROCEEDINGS: Re P (Enforced Caesarean: Care Proceedings)

(Chelmsford County Court, His Honour Judge Newton, 1 February 2013)

The Italian mother, who suffered from bipolar disorder, experienced a decline in her mental health while pregnant and visiting the UK necessitating her detention under s 2 and, subsequently, s 3 of the Mental Health Act 1983. In an unusual order issued by the Court of Protection, Mostyn J granted permission for the birth of the baby by caesarean section for the health and welfare of both the mother and child. Since the birth the child had remained the subject of a series of interim care orders.

Following the birth, treating doctors asserted that the mother had regained capacity and in accordance with her wishes that she could return to Italy. The mother was escorted back to her home country but on arrival the Italian doctors found her to be in a very poor state. The judge was critical of that decision which substantially diminished any prospect of the child returning to her care.

The mother had two older children, living with the maternal grandmother in Italy due to her inability to parent them caused by her mental health issues which had arisen in 2007 and had caused her admission to psychiatric hospitals in Italy on three occasions. Since the birth of this the mother's mental health had improved dramatically and she was now consistently taking medication for her condition which had previously been a concern. From an early stage permission was granted to withhold contact and the mother had had very little contact with the child.

The local authority, opposed by the mother, now sought final care and placement orders with a view to adoption. The father, a Senegalese national living in Italy, had taken no part in the proceedings aside from expressing his view that he opposed the local authority application.

The judge was tasked with the difficult decision of whether the mother could care for the child to a satisfactory and predictable standard within an appropriate timescale for the child. The mother claimed that she was now very well and that the child had saved her as she had been forced to accept her bipolar disorder and the need to take medication. She proposed that the child could return to Italy and be placed with foster carers for a year in order for the mother to demonstrate her commitment to treatment. The guardian recognised the mother's vastly improved health but was concerned about the timeframe for the now 9-month-old child.

In applying the welfare checklist, considering the child's welfare throughout her life and acknowledging that the decision engaged the Art 8, European Convention rights of the mother and child, the child could not be returned to her mother's care within the timescales of the child. A final care order was granted, the parents' consent was dispensed with and a placement order also granted. 

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