Inherent jurisdiction: anticipatory declaratory relief; removal of child at birth.

Author:Harris, Alexandra Conroy
Position:England and Wales

Bury Metropolitan Borough Council v D, Re Unborn Baby D High Court Family Division (Munby J) 4 March 2009 [2009] EWHC 446 (Fam)

A mother, D, was in custody having been convicted of an attack on her child L during supervised contact. She was pregnant with her second child and had tried to commit suicide whilst in prison. Psychologists' reports showed that she was capable of dangerous impulsive behaviour and that there was a real risk that she would harm her child at birth. She held a firm belief that her children would be better off dead than in the care of the local authority and that she and her children would be reunited after death. The local authority plan was that the police should remove the child into police protection at the moment of birth and that Bury MBC would apply to the Family Proceedings Court for an emergency protection order and an s34(4) order refusing contact as soon as practical thereafter. The local authority sought a declaration that it would be lawful to pursue this care plan without giving D or her partner notice.


There was no question but that the mother had capacity to make decisions for herself and therefore there was no foundation for any application under mental health provisions. As the child had not yet been born, the court had no jurisdiction to intervene to protect it. The local authority's plan involved a clear and fundamental breach of the mother's Article 8 right to a private and...

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