In considering the Children Acts 1989 and 2004 and the laws surrounding unborn children and maternal rights it emerges that pre-birth assessment does not fit within the remit of either. Even in the most serious of situations where there is a plan to remove a baby at birth (or shortly after), the Children Act 1989 is not actually applicable until the moment of birth and the status of personhood applies. However, this is not to say that there is not a requirement to conduct a pre-birth assessment. Indeed, the serious nature of cases where an application is made to court at birth the requirement for high quality pre-birth assessment cannot be underestimated. As the Honourable Mr Justice Munby declared:
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At the risk of unnecessary repetition I emphasise that the removal of a child from his mother at or shortly after birth is a draconian and extremely harsh measure which demands extraordinarily compelling justification. The fullest possible information must be given to the court. The evidence in support of the application for such an order must be full, detailed, precise and compelling. Unarticulated generalities will not suffice. The sources of hearsay evidence must be identified. Expression of opinion must be supported by detailed evidence and properly articulated reasoning. (England and Wales High Court (Administrative Court) Decisions 15th April 2003, point 44.ii)
In ensuring full information is available, professionals are required to work in partnership with the pregnant mother and the wider family but are without any redress to the law in cases where families do not wish to co-operate. No matter how serious the concerns for the unborn child, the same principles that allow a mother to refuse medical intervention, apply to refusing to take part in an assessment.
Section 7 of the Local Authority Social Services Act 1970 requires LAs to act under the general guidance of the Secretary of State and so any guidance issued under this Act must be complied with, unless there are exceptional circumstances that justify not doing so. The statutory guidance (discussed later in this chapter) contained in Working Together (HM Government 2006) and the Assessment Framework (DH 2000) is issued under s7 of the Local Authority Social Services Act 1970 and therefore must be complied with. Any reference to pre- birth assessment within the above mentioned guidance therefore provides the rationale for the LA undertaking pre-birth assessments and allows for the ‘fullest possible’ (England and Wales High Court (Administrative Court) Decisions 15th April 2003, point 44.ii) information being gathered.
Returning again to the Human Fertilisation and Embryology Acts of 1990 and 2008 and the issue of pre-birth assessment, the law has been taken a step further to include the prospect of pre-conception assessment. Since the early research by Patrick Steptoe and Robert Edwards into IVF and the birth of the first ‘test tube baby’, Louise Brown, in 1978 there has been ongoing scientific development and ethical debates surrounding artificial methods of conception. In 1971 Edwards and Sharpe (cited in Brindsen 2009) wrote about the need for research into IVF to be conducted under strict ethical guidance and in 1990 the United Kingdom became the first country to impose strict regulations on reproductive technology (Brinsden 2009). One area of regulation is the responsibility to consider the future of the child even before conception:
A woman shall not be provided with treatment services unless account has been taken of the welfare of the child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be
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affected by the birth. (Human Fertilisation and Embryology Act 1990, Section 31 (5))
Guidance to fertility clinics suggested that in the course of considering the welfare principle they should focus on the likelihood of significant harm but with a general presumption in favour of providing treatment (DH 2006). However, The House of Commons Science and Technology Committee were opposed to the welfare assessment on the grounds that people able to conceive naturally were not subject to such checks (DH 2006).
In 2004 the Human Fertilisation and Embryology Authority (HFEA) launched a process of consultation on the welfare of the child principle and in November 2005 produced a report on the findings entitled ‘Tomorrow’s Children’ (HFEA 2005). Whilst this report indicated some opposition to the welfare principle, on the whole, the report concluded that in the field of assisted conception third parties have some responsibilities relating to the child to be born (HFEA 2005). The HFEA decided that fertility centres should consider factors that may pose a risk to the potential child (or any existing children) and in doing so should focus on the following:
• Any aspect of the patient’s past or current circumstances which means that either the child born or any existing child of the family are likely to face serious physical or psychological harm or neglect. Such aspects might include:
a) previous convictions relating to harming children
b) child protection measures taken regarding existing children; or c) serious violence or discord within the family environment,
• Any aspect of the patient’s past or current circumstances which is likely to lead to an inability to care for the child to be born or which is already seriously impairing the care of any existing child of the family. Such aspects might include:
a) mental of physical conditions; or b) drug or alcohol abuse
(HFEA 2005, Page 8)
The government also remained in support of fertility centres considering the welfare of the potential child. However, they government did remove the requirement that there was a ‘need’ for a father (DH 2006).
The involvement of a ‘third party’ in the creation of human life is the trigger to the guidance on the welfare principle as applied to IVF and as such is not in exactly the same realm as professionals conducting pre-birth assessments under statutory guidance issued under Section 7 of the Local Authority Social Services Act 1970. However, what it does do is highlight further
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the complexity of law that relates to the unborn child. Exploration of the law has identified that the term unborn baby does not exist legally and that women have rights over their own body, but even then it is not quite that simple. As with all law, guidance is offered which builds on the law and therefore it is to the guidance surrounding safeguarding and assessing children in need I now turn.