SB (A Mother) v A Health and Social Services Trust

Factual and Procedural Background

This appeal arises from a decision of the High Court of Justice in Northern Ireland, Family Division, where the trial judge declined to declare that the respondent Health and Social Services Trust had breached the Article 8 rights of the appellant and her child. The dispute concerns the Trust’s prohibition on the appellant physically holding her newborn child and the prohibition of skin to skin contact for a period of four weeks following the child's birth in June 2020. This prohibition was imposed in the context of COVID-19 public health restrictions and risk assessments conducted by the Trust.

The appellant, who has a diagnosis of emotionally unstable personality disorder and whose four previous children had been freed for adoption, gave birth to her fifth child on 20 June 2020. It was undisputed that the child needed to be removed from the appellant’s care shortly after birth due to unsuitable home conditions. The Trust proposed contact restrictions, including no physical touch and contact only outdoors with the appellant wearing full personal protective equipment (PPE).

Following the birth, an Emergency Protection Order was granted on 22 June 2020. The Chief Medical Officer (CMO) provided advice on 23 June 2020 that physical contact, including skin to skin contact, was low risk if no party showed COVID-19 symptoms. However, the Trust did not immediately share this advice with the appellant. The Trust’s risk assessments initially prohibited skin to skin contact, citing vulnerabilities in the foster family and the appellant’s living conditions.

The appellant sought disclosure of the CMO correspondence and permission for skin to skin contact, but these requests were refused by the Family Proceedings Court. Proceedings were issued in the High Court on 8 July 2020 alleging a breach of Article 8 rights. The CMO subsequently advised that the restrictions were unnecessary and disproportionate given low community transmission and highlighted the potential negative impact on maternal bonding.

The appellant continued contact with the child wearing PPE but without skin to skin contact until 20 July 2020, when she declined to wear PPE and had skin to skin contact. The Trust then formally approved skin to skin contact following a risk assessment on 21 July 2020. The appeal challenges the proportionality and procedural fairness of the Trust’s restrictions and risk assessments.

Legal Issues Presented

1. Whether the respondent Trust breached the appellant’s and her child’s Article 8 rights by prohibiting physical contact, including skin to skin contact, following the child’s birth.
2. Whether the Trust’s interference with family life was justified by a legitimate aim and was proportionate in light of public health concerns during the COVID-19 pandemic.
3. Whether there was procedural unfairness in the delay and manner of disclosure of relevant CMO advice to the appellant and her legal representatives.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the Trust’s prohibition on skin to skin contact constituted an interference with the appellant’s and child’s Article 8 rights, which required justification by a legitimate aim and proportionality. It was undisputed that the legitimate aim was the protection of health during the COVID-19 pandemic.

The court examined the procedural history and found that the Trust had delayed disclosure of relevant CMO correspondence to the appellant, which was regrettable and contrary to procedural fairness in vindicating Article 8 rights. However, the court recognized the unprecedented and evolving nature of the public health crisis and the difficulties faced by all parties in balancing public protection with individual rights.

Regarding proportionality, the court accepted the Trust’s risk assessments as reasonable and within the range of discretionary judgment available. The Trust’s initial prohibition on physical contact was based on public health guidance and the vulnerabilities of the foster family and appellant’s living conditions. After receiving updated CMO advice, the Trust permitted physical contact with PPE but continued to prohibit skin to skin contact until 21 July 2020.

The court noted a modest delay in decision-making caused by holidays and acknowledged the appellant’s anxiety but found that the four-day period of prohibition on skin to skin contact was unlikely to constitute a breach of Article 8 given the continued contact and holding of the child during that time. The court emphasized that no commitment had been made to change the risk assessment by 10 July 2020, and the Trust’s cautious approach was understandable in the circumstances.

Ultimately, the court found no flaw in the trial judge’s proportionality evaluation and concluded that the interference struck a fair balance between public health interests and family life.

Holding and Implications

DISMISSED

The court dismissed the appellant's appeal, upholding the trial judge’s decision that the Trust did not breach the appellant’s or child’s Article 8 rights. The direct effect is that the Trust’s risk assessments and restrictions during the relevant period were lawful and proportionate given the public health context. The judgment does not establish new precedent but confirms the application of established principles of proportionality and procedural fairness in the context of public health measures affecting family contact.