Being a judge in the family courts today requires a solid grasp of the law, but being a consummate diplomat helps too. And when that is combined with fairness and careful thought, you have a gem of a judge.

At the end of last month, Hayden J gave a judgment on a troubling case. A mother, who was considered to be vulnerable, was expecting her ninth child (the previous eight had been taken into care), and both she and her partner, also a vulnerable adult, desperately wanted to have a child of their own to love and take care of.

The Local Authority, panicked by the intention and the fact that during the previous birth the mother had hidden herself away and gone into labour at home where she delivered her twins, sought something called ‘anticipatory declaratory relief’. This type of application allows the local authority to make provisions for a child before they are born.

The argument by the local authority, despite reports by medical and psychiatric professionals assigned to the case which all emphatically showed to the contrary, was that mum did not have capacity to understand crucial elements in relation to her circumstances. Specifically:

(1) Does she have the capacity to make decisions as to the contact she has with professionals?

(2) Does she have the capacity to make decisions in relation to the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction?

(3) Does she have the capacity to make decisions as to the treatment that she should receive following the birth of the baby?

It is not clear from the judgment why the local authority then changed its position, but the application to seek ‘anticipatory declaratory relief’, was then withdrawn by the local authority and it was at this point that Hayden J was asked to review that decision. Hayden J then subsequently allowed the application for relief to be withdrawn, satisfied that it was not necessary and that mum had capacity to understand the questions above.

Even more wonderful was Hayden’s consideration of the issue post birth. Despite the likelihood that this latest child would also eventually be taken into care, he called for a humane approach to the afterbirth, with support from professionals, to allow the child and mother to be together during what he calls “the mutual need each, for the other.”

Despite the local authority’s over-zealous actions, and on this Hayden J says, “Those instincts are laudable, but there is a paternalistic complexion to them,” the view was that the initial application was sincere. Hayden J’s sentiment below perhaps sums this up best:

“I’ve no doubt that the professional instincts here were sincere. However, equally, I’ve no doubt that they were, ultimately, misconceived.”

It’s a sensitive judgment, both to the family involved and the professionals assisting, and it reiterates the need to respect personal autonomy, which we think is crucial in a democratic society. So, for delivering a fair and sensitive judgment with deft application of the law and for employing a level of diplomacy to help keep the temperature down in an already heated arena, our judge of the week is Hayden, J.

Good on you, sir.

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