Mothers' rights 'breached' after babies taken into care
Two women whose new-born babies were taken into care have won a court ruling that their human rights were breached.
The mothers sought a judicial review after Renfrewshire Council and Glasgow City Council were granted protection orders by local sheriffs.
In both cases, the women were not given any notice or represented in court.
The Glasgow case involved a woman who had a history of prostitution and drug-taking. The other involved an 18-year-old who had parental care issues.
In the Renfrewshire case, it was noted that the teenage mother had a previous child in March 2009.
The child went home two days after the birth but was back in hospital a week later "due to lack of parental care".
The baby was given to foster carers and made the subject of a supervision order in August of the same year.
When the teenage mother became pregnant again, Renfrewshire Council warned her that they intended to take the child away at birth.
Her lawyer tried to lodge a caveat at the local sheriff court - a procedure which should guarantee a hearing before a decision is made.
The Court of Session in Edinburgh heard that the sheriff refused to allow such a move after her son was born in July 2010.
The Glasgow case involved a woman who had a history of drug-taking, prostitution and homelessness.
Lord Brailsford heard that she gave birth in 2004 and the baby was given to her mother to look after.
The judge noted that a report by social workers at the time concluded she did not have the capacity to care for the child.
"She showed no real bond with the child, had no idea of the child's needs and needed constant supervision over parental care issues," said Lord Brailsford.
The woman gave birth again in 2009 and midwives at the hospital expressed "serious concerns".
Less than a week later the child was placed on the Child Protection Register.
The following April a Children's Hearing placed the child under supervision.
The Court of Session heard that the mother was attacked by the child's drug addict father while she was pregnant.
A case conference of social work child protection officers, police, a midwife and a psychologist decided to seek a Child Protection Order for the third baby as soon as possible.
The mother knew Glasgow City Council planned an application to a sheriff but she too was refused permission to lodge a caveat the day after her son was born, again in July 2010.
In both cases, sheriffs made orders to take the boys away without giving the mothers any notice and without them being represented.
Lord Brailsford noted that there were two issues involved in the cases.
The first was whether the mothers had a right to put their case to a sheriff.
The other question was whether, in all the circumstances, it was right to make the orders the local authorities wanted.
The women's case was based on provisions in the European Convention on Human Rights guaranteeing respect for family life and the right to a fair hearing.
Lord Brailsford was told that previous court challenges in Finland and Germany had led to rulings that it was a violation of the Convention Rights if it were possible to hear a parent's case without putting the child at risk.
The judge was also told that the women could have appealed against the orders at sheriff court level, without involving the Court of Session.
Lord Brailsford rejected the claim that the women should have been allowed to lodge caveats, saying their right to be heard did not come into play at that early stage.
He did conclude, however, that their right to enjoy family life had been affected.
"Both parties were prepared and ready for a hearing. There was no immediate risk or threat to the children," said the judge.
"A hearing could, in any event, have been dealt with and arranged expeditiously by the sheriff court if required."
Another hearing is expected, to decide what Lord Brailsford's decision could mean in practical terms for the women and the authorities.
The hearing will also address the issue of who will have to pay legal costs.