Mother banned by law from caring for infant son - lost a baby to cot

Mother is banned by law from caring for her infant son - lost a baby to cot

By SUE REID, reporter



Sue Reid is a reporter at the Daily Mail. This article was previously published in the Daily Mail on July 7, 2003. The copyright belongs to Associated Newspapers of the UK. The article can not be reprinted

This article is published here with the kind permission of the author.




This young mother is banned by law from caring for her infant son or living with the man she loves. Her crime? To have lost a baby to cot death - and to come before the secretive and all-powerful family courts...


EVERY month, for four short hours, Nicky Underdown visits her two year old son Tommy. She walks him in the park or takes him to the beach.


Almost before she has said hello, it is time for the emotional goodbye.


Tommy is often close to tears. So is 25-year-old Nicky as she drives home, knowing that the child she adores is growing up without her. She cannot see Tommy for long because of an extraordinary decision by a family court, against which there is little chance of appeal.


She cannot live with Tommy and his father Richard, 24, although they yearn to be a normal family. Instead, she is forced by a court order to live apart from the son and partner she loves for a reason that defies logic.


Three years ago, in a grave miscarriage of justice, Nicky was wrongly convicted of murdering her first child, William. The little boy was only 14 days old when he died at home in what Nicky has always maintained was a tragic cot death.


By the time her life sentence was judged unsafe at the Court of Appeal, and a retrial had exonerated her, Nicky had spent 14 months in jail. She had also given birth to the couple's second son, Tommy, who had been taken from her on the day he was born.


It was a horrendous experience for any mother. But when Nicky was freed after being judged innocent, she hoped she would, at least, be able to fulfill her dream of becoming a doting mother to her second child at home with Richard.


Yet that dream was crushed in the family courts, where it was ruled that - although Nicky had been cleared of any wrongdoing in William's death - she would still be denied all but token access to baby Tommy.


AND, as Tommy lives with Richard, she must also live apart from the man she hopes to marry, or risk having their son taken into care. For both parents, in homes a few miles apart in a south coast town, it is an agonising situation.


Their only hope rests with the Prime Minister's wife, Cherie Booth, who is preparing to fight Nicky's case at the European Court of Human Rights.


The case will put a spotlight on Britain's powerful and secretive family courts, through which thousands of children have been taken from their homes and farmed out to foster parents, or adopted, on the basis of evidence from ‘experts' and social workers.


Here, the solid cornerstone of our legal system - that you are innocent until proven guilty beyond all reasonable doubt - does not apply.


In such cases, there is no jury to weigh the evidence, only lone judges who make decisions based on the balance of probability. And crucially, as in Nicky Underdown's case, the outcome of earlier criminal court trials is often ignored.


The courts' culture of secrecy - sternly policed with the commendable aim of protecting children's identities - means there is no public scrutiny of the often heartbreaking proceedings. Those who protest are threatened with contempt and even imprisonment.


NICKY UNDERDOWN is a bright, articulate former nurse.


In prison she became a friend of Sally Clark, the solicitor who was also found guilty of infanticide, before being cleared by the Court of Appeal this year.


Together, the two women would pore over legal documents as they waited for the appeals which would eventually clear them both.


Like that of Sally Clark, Nicky's tale is one that you can scarcely believe in a modern, democratic nation.


The tragedy began when Nicky and Richard's first baby was born at Stepping Hill hospital in Stockport, near Manchester, on July 14, 1999.


The couple had been delighted by the pregnancy, and when Nicky began having labour pains, they drove excitedly to the maternity wing. Nicky's labour was long and tiring. As the hours wore on, a paediatrician became worried that the strain might be harming the unborn child.


So, to hasten the delivery, a suction cap was applied to the baby's head and he was pulled out into the world.


'The nurses and doctors took William to a corner of the room the minute he was born at 7.55pm, weighing 7lb 9oz,' recalls Nicky. But the extended labour and the manner of William's birth was immediately evident.


'His head looked the shape of a rugby ball because of the suction cap and there was the beginnings of bruising around his skull.


'The next morning, when I was giving him a bath, he suddenly went bluey-grey and lifeless.' William was rushed to the special baby unit where he was found to be suffering from an infection provoked by the long labour.


BUT he recovered, and Nicky and Richard were able to carry him home proudly to their small flat in Heaton Mersey, Stockport, nine days later.


Those first days as a family were not without difficulties. As with many newborn babies, William would not settle at night, so when the health visitor called, Nicky sought her advice.


She was told that if the baby wouldn't sleep contentedly in his Moses basket, then the couple should comfort him in their bed.


'I was tired but happy,' says Nicky now. 'I had a partner whom I loved - and who loved me back. William was the best-looking baby. Richard had a good job and we were buying our flat.


'I was planning to go to ManchesterUniversity to study midwifery the following autumn. There was a place in the creche there for William.' On July 28, Nicky gave Richard breakfast before he left for work. William was still asleep in the couple's double bed. She ate a piece of toast, then climbed in beside him and also fell asleep.


To prevent any risk of smothering her baby, Nicky had taken the precaution of putting all the pillows on the floor. But even that could not halt the tragedy that was about to occur.


'I woke at 10am and turned to William,' says Nicky. 'There was blood coming from his nose or mouth. It was on the sheet. He was bluey-grey again. I kept crying to William to wake up.' She tried desperately to resuscitate him, without success. In her panic, she phoned Richard at work, then dialled 999 for an ambulance, screaming at the paramedics when they arrived: 'Is he going to be all right?' In hospital later that morning she begged the doctors: 'Please save my baby.' William was placed on a life support system, but at midday a paediatrician told the couple nothing more could be done.


'William looked as though he had just gone to sleep,' remembers Nicky. 'He was very pale. I insisted they took him to the mortuary in a pram and not a coffin.' Behind the scenes, the wheels of officialdom were already moving fast. Just 20 minutes after William's death, a coroner's officer and two women detectives from Stockport police arrived at the hospital.


Nicky and Richard were driven home by friends, and the police officers followed.


'I showed them the sheet with William's blood on. They made me get William’s last nappy out of the bin. My plate from the morning toast was still by the bed from a few hours before.


'The grief made my whole body hurt. I had no idea what the police wanted, and finally they left.' Nine days later they were back.


Three police officers took Richard and Nicky into William's little room where they arrested them for murder. They said a postmortem indicated that William had been shaken to death.


'I gasped,' recalls Nicky, who had scarcely had time to begin grieving.


'Richard erupted, calling them heartless bastards.' The couple were taken in separate cars to the police station, interviewed at length and Nicky was put in a cell for the night.


'They let Richard go because he could prove he had been at work when William died. The police kept asking if I had shaken William. I said: "No, of course not."


'I was formally charged at the local magistrates' court the next morning and sent to Styal women's prison in Cheshire for ten days until I got bail.'


Nicky was allowed to return home while the murder inquiry proceeded: 'William's body was released for burial the following October. I chose white blooms to spell out his name.


'Richard was too upset to carry his tiny coffin at the service. My father did it instead.' Seven months later, in May 2000, Nicky went on trial at Manchester Crown Court.


The prosecuting counsel argued that a post-mortem had found brain injuries and a skull fracture, as well as 'bleeding characteristic with violent shaking and at least one, if not two, blunt force impacts to the top of the head'.


'I said that I had not hurt my baby in any way,' Nicky recalls.


'My defence counsel suggested that I might have rolled over onto him as I slept. Or his injuries could have been caused by the suction cap at birth.'


THE jury did not agree and Nicky was found guilty of killing William. 'I was very scared. I didn't want to spend the rest of my life in jail. I felt sick.' She can still remember feeling the hands of a security guard supporting her as she staggered from the dock to a cell below.


Unbeknown to the court, Nicky and Richard's only consolation was that she was already pregnant with their second child.


'I had expected to be found innocent and freed,' explains Nicky. 'The new baby would never bring back William, but Richard and I had decided it was the way forward.


'But when Stockport social services discovered a few days later that I was expecting, they visited me in prison.' It was a horrifying encounter. It was here that Nicky was told that her new baby would be removed from her at birth.


It was the start of a process that would all but eradicate her from her child’s life. Protest was useless.


Richard was informed that he might be able to keep their child, but only if he abandoned his job and learned to look after the new arrival, which he duly did.


Six months later, Nicky was driven under guard and in handcuffs from Styal Prison to WythenshaweHospital in Cheshire for a Caesarian section on a date prebooked by social workers.


She was wheeled into the operating theatre with the cuffs still around her wrists while two prison officers waited on guard at the door.


'I woke up from the anaesthetic and started crying. My baby had already gone. He was 9lb 3oz and one midwife offered to take a Polaroid picture of him and bring it to me. I was so grateful.


'Richard was running between me and the baby unit where Tommy was being kept away from me. He said the baby was beautiful but I could see the pain in Richard’s eyes.' 'The next day the social workers allowed me to see Tommy for one hour. Richard took pictures of us together. I kissed the baby’s head.


I smelt him. I was devastated when they carried him away.' It was a full six months before Nicky was allowed to see Tommy again, when he was brought by Richard and a social worker to visit her in Bullwood Hall prison in Essex where she had been moved.


Meanwhile, the Court of Appeal had agreed to examine Nicky's case, with two new medical experts providing evidence on her behalf.


They argued that Tommy's head had not been hit but injured during his emergency birth.


In July 2001, Nicky's conviction was quashed on the grounds of unsafe medical evidence at her original trial, and a retrial ordered.


At the new trial she was cleared of killing William in the same dock in the same courtroom where she had been found guilty nearly two years before.


Yet liberty would still carry a terrible price. Incredibly, the Stockport social workers would not let go.


They demanded that Nicky face another investigation at the family court in Manchester. It would be what is called a 'causation hearing' to unravel the reason for William's death.


By now, Richard had moved south with Tommy to be near his own supportive family. Although he remained devoted to Nicky, he was warned by social workers that if she re-entered their lives, the baby might be put into care, or even adopted.


So Nicky went to live with her mother nearby until the family court hearing, exactly a year ago.


'What I did not realise is that the family court system could completely ignore the decision of a jury and judge at a criminal court. I had been found not guilty, I had been cleared of any offence.


I was innocent. Yet now I was being tried again.' The rulings of that court hearing are shrouded in secrecy. The detailed discussions, medical evidence and pronouncements that took place there are not allowed to be published, in order to prevent the identity of the child involved.


The name of Nicky's partner and their son have also been changed for this article so they cannot be identified in any way.


But what can be revealed is that Nicky was accused of a momentary loss of control which led to William's death.


She was asked if she had handled her baby aggressively.


Her insistence that she had done nothing to harm him was ignored.


After a second family hearing this February, Nicky was told she would never be allowed to care for her son or play any part in his upbringing.


In a bitter twist, this means she must stay away, too, from her loving partner, whom she has known since her school days.


Last night, Kent County Council, which is now in charge of Nicky's case, refused to comment.


The social services department, which took over from Stockport when the family moved to Kent, oversees a strict timetable of when and where Nicky can meet Richard and her son.


There must always be a care worker present and Nicky cannot pay the monthly visit to her son at Richard's home or her own flat.


It must be outside or, if the weather is bad, at a social services' family centre.


WORSE, Nicky has been told that when Tommy is older she must never tell him where she lives or how to get there in case he should try to make his own efforts to see his mother.


Because of stress, Nicky has had to give up her ambition to become a midwife and now survives with the financial help of her mother, who lives in the same town.


Twice a week she drives the five miles to where her first child, William, is buried to put flowers on his grave marked with the words: 'Now safe in the arms of Jesus.' Often, it is the only place she finds any comfort. William was buried in Kent, the place where Richard and Nicky first met and grew up.


And there this tragic story might have ended were it not for a rare stroke of luck. Earlier this year, Nicky borrowed a friend's computer and sent an email begging for Cherie Booth's help.


Within 24 hours, the Prime Minister's wife had emailed from her chambers in London advising Nicky to contact her friend Maggie Rae, a renowned solicitor whose firm is now helping to bring Nicky's case to the European Court of Human Rights.


Cherie Booth is expected to represent her there.


Of course, that process may take months, if not years.


Meanwhile, the state stranglehold on the lives of Nicky, her partner and their beloved Tommy continues.


Now a two-and-a-half-year-old toddler, he is growing bewildered.


He sees Nicky arriving for her short visit every month and shouts excitedly: 'Mummy's car.' Yet if Tommy saw her driving past in the street, the court ruling means that she would not be allowed to stop and speak to him.


'I have never seen Tommy open my present on Christmas day. I have never been able to read him a bedtime story, or watch him go to sleep,' she says, her voice cracking slightly as she sits in the living room of her flat.


Then she smiles fleetingly. 'I only hope that one day I will be able to bring up the son I love.'



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