X Health Board v R1 & Anor

DISTRICT JUDGE PRATT: Introduction

1. This is my ex tempore oral judgment given at the end of a short hearing where I have heard evidence and submission on the application.

2. The Applicant is the local health board who operate the local hospital with maternity unit. This is an application by X Health Board to exclude the first respondent, R1, from the maternity ward during the birth of his first child. The second respondent is R2, his partner and the mother-to-be. R2 attended the hearing today and I made her a party this morning. It is surprising she was not a co-responded to the claim and application given the impact on her. Background

3. The family appears to have been in public law pre-proceedings. It appears social services have been involved – although no one has been available to attend despite the court’s urgent enquiries. X say that they were aware that R1 could pose a risk of violence at the birth. There has been the involvement of the social services. I am told the parents and social services and the Applicant agreed a birth plan. Rs say that the plan was for R1 to be at the birth. X says last Thursday further information was disclosed which they say means that R1 is an unmanageable risk. As a result of that, they made the injunction application as soon as they could. That meant that it had to be an out-of-hours injunction application which was made without notice to the parents.

4. That injunction excluding R1 from the birth was granted by Dias J on a without notice and out-of-hours basis. It is unclear what notice the parents were given after that decision. The parents say they have only just been told about it.

5. That decision by Dias J was intended to be a final, not interim, injunction as it would have concluded matters. The plan was for R2 to be induced during the currency of the injunction. This hearing was listed for directions before the District Judge and was clearly intended to be a tidying up exercise.

6. For various reasons, R2 has not been induced nor given birth. The updated Due Date is tomorrow. Events may well happen sooner rather than later, but, if not, R2 is going to be induced on Monday. So the birth could happen either naturally now or any time over the weekend. Parties Positions

7. X says that the injunction should be extended because the same situation is present and the same risks arise; it is simply something that needs to be regulated. R1 says he wants to be at the birth of his daughter. R2 says, " I've got nobody else and I do not want to be there on my own". I can understand it is an emotionally difficult application to deal with.

8. I am in a position where I must make a decision today; even no decision is a decision. And that decision is likely to be a final decision. Legal Position

9. This has come before me today because the injunction was granted without notice and listed for directions. It has changed rapidly into a contested hearing. This is, in reality, a final decision that I am making today because of the shortness of time before the birth. It may well also be practically unappealable given the lack of time to review it. Consequently it is not an interim injunction and the American Cyanamid test does not apply. I have to decide the claim and application.

10. Given the timings of this application I have had limited submission on the law, but I have identified what I see is relevant. My decision must be whether X, as the landowner and the local health board, have the right to exclude R1. As a landowner, no doubt they have the right to do so unilaterally; but with the proviso that the exercise of their public duties must surely be exercised proportionately. It seems to me that the Rs’ Art 8 rights must directly apply. It may be swallowed by the considerations in respect of the Rs, but of course there are the rights of the child once born.

11. Equally, there are other users of the maternity ward, their families at a special time, and the staff. Such balances are not taken in the abstract, and balances must be undertaken in the real world considering what resources are available.

12. I have had no submissions on any specific legal principles, nor any specific regulations that apply, nor any relevant caselaw. But my view of the legal issues were accepted by all parties.

13. I form the view that the relevant legal test must be that any exclusion must be a proportionate action to achieve a legitimate aim, balancing the Art 8 rights of this putative family, the other users of the maternity ward, and staff. It is not a binary issue. It is a question of degree and involves that question of proportionality. That begs questions as to what steps are available, reasonably required, and need to be taken to mitigate risk. Evidence

14. So, with that in mind, I have heard some evidence today. In terms of paper evidence, there was a risk assessment and a supporting witness statement. The risk assessments make stark reading and show significant risks of violence.

15. First of all, I heard from Ms B, Senior Midwife, on behalf of X. She seemed to me to be open and clear and set out the position from the X’s perspective. She accepted that they were always aware of risk issues with the R1, but that actually the severity of risk only became identified at the last minute. I thought that she was a clear and open witness.

16. The father, R1, gave evidence. I thought that he was a fairly clear witness. He was not trying to duck or avoid questions. It seems to me that he was showing genuine remorse for his history. He told me that he is willing to change. He accepts that he has a difficult history. The problem that we have is that it is a question of risk, and risk is not based on certainties. It is a question really of not what he wants to do, but, if I can use simple language, where he is at now. It is a question of whether he can, in the cut and thrust of the stressful moments, control himself. So whilst I accept that he wants to change and he is doing what he can, the question is subtly different to that.

17. R2, the mother, gave her evidence today about how upset she was at the idea of giving birth on her own. She also said how annoyed that she is that the matters were not dealt with sooner. I have to say I have sympathy for that, I’m sure in an ideal world matters could have been identified earlier. However, the imminence of the birth means this is urgent and this application must be decided today. Urgency affects fairness on all sides in different ways, and I must account for that. These disclosures should have been made earlier, but we have to deal with the reality we have.

18. Additionally, on behalf of R2, I heard from Ms S, who is the housing support officer for R2 and has helped R2 a lot with not only her housing issues but on surrounding issues. I accept her evidence that R1 has been involved, and has not shown any concerns in the contact she has had with him. In fact, from her description, he sounds somewhat of a model citizen in respect of her engagement with him and helping her where he can. But of course, she has only seen a letterbox view of R1’s behaviour and not in testing situations. Analysis

19. So, with all of that taken in the round, as a judge at first instance, I have to balance all these competing features and see what the appropriate balance is. So I have to balance the risks that there are to mother, to staff, to other members of the unit who may be there from time to time, against the rights for the parents to be there. The evidence is imperfect. There is no getting away from that. I think that is a necessary result of it being an urgent application.

20. We have not got witness statements from everybody, but I am satisfied that I have sufficient evidence today. I accept that the parents are representing themselves, but they have done a very good job of it. I thank them very much for the way that they have put their case in a very mature and calm manner.

21. I am somewhat unsure about the social work position. I would have liked to have heard something about it and the involvement of the local authority and the plan. Nevertheless, we are where we are. This decision cannot wait. Rights to a Family life

22. So, on the one hand, we have this family's rights to a family life. The mother and father are not a couple as such, but they clearly still share a strong bond, and they are going to have their first child together. Father wants to attend the birth of his daughter. He is also concerned about the effects on bonding. To an extent, that other issue can be managed further on by involvement of the local authority. But of course being at the birth of your first child is a serious and significant life event.

23. Equally, mother wants him to be there, firstly, because he is the father of her child and also that she would have nobody else there otherwise. The birth plan was for them to be together.

24. I think that the fresh evidence of risk does change the nature of that and so it is right that we look at it again. But being asked to exclude a father from the birth of his child, particularly his first child, I cannot think of a more significant interference, save for one or two of the more strenuous orders that we make in the family courts. Risk of Violence

25. Set against all of that, I have to balance the risk that the father may present on the day. It arises from his ability to control his emotions and the difficulties he has with substances. I accept his evidence that he clearly presents often very well, if I can say it in those terms. He has not presented with any issues today, but the reality is that he has a difficult history and he accepts that.

26. Probation have identified him as a high risk of domestic violence. Last Thursday X discovered the previous assault. I accept the description of that assault as being on a police officer who happened to be pregnant at the time. I am going to accept the evidence that it was assault by pushing. I accept that R1 did not know at the time that she was pregnant. Nevertheless, it is still a very significant assault; a physical assault on a female police officer who was pregnant.

27. I am also told that, in terms of his own functioning, he has ADHD and that interplays with the substance misuse that has happened over time. Ultimately, Probation have identified him as a high risk of violence to mother and to others. There is significant previous criminality which suggests a lack of control.

28. This is going to be one of the most highly pressured stressful situations this family undergo. If things go very well, it is still a difficult process. The most likely outcome may well be, given mother's difficulties with substances, that Baby will be in a specialist unit. If taken away from them for whatever treatment that Baby needs, I am not sure R1 will be able to manage his emotions. But if things were to go less well (and we hope that it will not but we never know), it is a very dangerous and explosive situation. It is a situation where surgery may well be required at the drop of a hat. Everyone needs to be in a calm and controlled environment. Not just for R2 but also for staff and other unit users. It is going to be one of the most stressful situations of R1’s life. So it is a very delicate situation, but one which is likely to be explosive with extremely disastrous effects.

29. Consequently, it seems to me that, despite all the best efforts today and what I have seen, there is a real risk of lack of control. There is a risk, it seems to me, of, in a stressful scenario, things going wrong despite best efforts, and that risk is reasonably likely without the injunction. If there is a lack of control, the outcome is likely to be one of significant harm. It seems to me that in this scenario there is a real risk to R1 himself, to mother, to Baby, to staff, to others in the unit at the time. He will not intend to do harm, but I think that there is a real risk that the difficulties that he has mean that he just will not be able to control it. Mitigations

30. What can we do to allay these risks and these fears? Can X put on extra security? Well in an ideal world, X could. But is it proportionate to put on the level of security that we would need? I do not think that it is. I think that resources are always strained and tight and, given the severity of the risk, I think that it would be disproportionate to put on the level of additional security which would be required. I accept X’s evidence that no security presence would be a sufficient mitigation.

31. Would it be possible to have visits after the event? That may or may not be the case, but of course that is more likely to be regulated by any involvement with the local authority and with professionals around any care plan that might be in place. It is the physical attendance which seems to me to be the issue, so I would say that remote attendance may of course be suitable. I cannot find a proportionate measure which would enable R1’s physical attendance. It is a question of safeguarding him, mother, baby, staff in the ward in general. Conclusion

32. On balance, my view is that this heavy level of restriction is proportionate to the risks posed. I do think that the injunction is justified and I will extend it, with the proviso that there be remote attendance afforded to father.

33. I know that that is not what both mother and father want to hear, and I know it is a difficult outcome, but I think that that is the correct legal outcome from the application.