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An answer to an important question you didn’t know you had

 

 

 

The High Court in Re A Father v SBC 2014 have answered a very important question, albeit one that probably hadn’t fluttered across most people’s consciousness

If a child is at home under a Care Order, and the Local Authority want to use their powers to remove, can the parents obtain a s8 Human Rights Act injunction to stop them?

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html

 

[All underlining, as ever, as mine for emphasis]
As the High Court points out, the remedy ordinarily for a parent if the LA want to remove a child once a Care Order has been made is either an application to Discharge the Care Order or a judicial review, neither of which are that easy to get off the ground. And an application to discharge the care order won’t stop the LA removing in the interim.

The parents in this case made their application to discharge the care order, but knowing that the Local Authority proposed to remove the child before the case would be heard also made an application for an injunction under s8 of the Human Rights Act that would have prevented the removal.

They referred to the decision of the Court of Appeal in Re H (Children) 2011, in which a Judge granted an interim care order but ruled that removal of the child under that order would be a breach of the child’s article 8 right to private and family life. The Court of Appeal upheld that and said further that if the Judge had gone on to make the section 8 HRA injunction prohibiting removal there would have been jurisdiction for her to do so. This was, a very short judgment and the s8 HRA issue is dealt with very briefly, and in of course the context in that case that the Judge had already decided that it would be a breach of the child’s human rights to remove the child.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1009.html

The Court in this case at first instance refused to make the injunction and did not consider that it had jurisdiction to do so, given that the LA were exercising a lawful power.
In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

“Father applied to discharge the order of 7th November 2012 and he is entitled to make an application and be heard on it. I do not feel that it is improper of me to give my view on the likelihood of success of this application as it plays on my decision. In my view, it is extremely unlikely that he will succeed to discharge the order.”
The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

“I am being asked to glean the arguments from Re H and apply them to this situation, to import injunctive relief rights into this case to prevent D being removed tomorrow. I have tremendous sympathy for the parents. D has lived with them since birth, they both have difficulties, and they have received lots of support. They were both properly represented and both have consented to the order of 7th November 2012. They never appealed this order. What I am being asked to do by the father’s solicitor, who argued very strongly for the parents, is to, in effect, go behind that order.
In the absence of the local authority agreeing to give some breathing space and time, I cannot go behind that order. In some ways I wish I had the power to do so. I wish I could persuade the local authority to grant further breathing space as there is no emergency event which has precipitated the local authority wanting to take D tomorrow. They say that the progress they hoped for 15 months ago has just not happened. In the absence of me being able to persuade the local authority to agree to such a window, I cannot grant injunctive relief. There will still be a hearing to deal with the application to discharge. My present view is the father’s application will not be successful.

With a lot of reluctance, I have to dismiss the application for an injunction. I cannot see that I can do anything else. In practice, in accordance with the order of 7th November 2012, and in line with the care plan, D will be removed tomorrow.”

He therefore refused the application for an injunction and also refused an application for permission to appeal. He granted the application for a recovery order under s.50.

On appeal, the High Court, in the form of Baker J, took a different view on the Court’s jurisdiction to make a s8 injunction in these circumstances, and went back to remarks that the House of Lords had made in the notorious ‘starred care plan’ case

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10 [2002] 1 FLR 815 paragraph 49, that

“if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.”
It is true that Lord Nicholls added, at paragraph 62:

“one would not expect proceedings to be launched under s.7 of the HRA 1998 until any other appropriate remedial routes have first been explored.”

 

Baker J made it plain that jurisdiction to make a s8 HRA injunction existed and could have been used in this case (pointing out that the other remedial routes theoretically available weren’t appropriate)

 

 

 

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

Baker J also drew together some observations of other Courts on the onerous decision-making process for a Local Authority in this type of situation (see particularly his reference to Re G below)

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

 

 

and also brought Re B-S et al to bear on the process – which is something that none of the previous authorities about LA exercising powers under a Care Order had been able to consider, as it hadn’t existed at the time.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.
In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

A lot of very important stuff there (as you can probably tell, because I’ve underlined nearly all of it)

1. The same threshold that applies to removing a child under an Interim Care Order (that the child’s safety requires immediate separation) applies to removal from home under a Care Order (unless you go through the process below)
2. The LA have to conduct the full-blown Re B-S analysis of the pros and cons of each option
3. The child should stay at home whilst that exercise is carried out – unless his safety requires immediate removal
4. The parents must be fully involved in the assessment and analysis process and their views taken into account – it almost reaches the point, pace Re G, of the LA holding something akin to a Meeting Before Action (how the funding would be triggered to get the parents legal representatives able to attend is a bit tricky)
5. A Court can make a s8 HRA injunction to prevent the removal if the parents challenge the removal and want the status quo to remain pending litigation of a discharge of care order application.

6. We don’t get to this bit just yet, but it is vital – unless the removal is because the child’s safety requires immediate separation, if an injunction is what it will take to make the LA desist from their plan of removal, an injunction SHOULD be made

 

As was pointed out to Baker J, care orders with children at home had been a fairly rare and unusual circumstance, but with these two factors :-

(a) The 26 week deadline meaning that cases are finished at an earlier stage and with residual doubts; and
(b) The Court of Appeal’s decision in Neath Port Talbot

The number of such cases has gone up and is likely to continue to go up. As the number of children at home under Care Orders go up, the number of children whom the Local Authority seek to remove under a Care Order goes up too. So this issue affects more and more children as time passes.

With that in mind then, the High Court gave guidance on how Courts should address such care plans in future (this stuff is HUGE)
To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

(Read the last bit again – the presumption is that the injunction should be granted UNLESS the LA are able to show that circumstances that would justify an immediate removal are made out)

I think that there is an argument that current Care Orders at home ought to be read as though that 14 day notice period save for emergencies is implicit in the care plan, given this authority. In all future cases, it needs to be explicit, and this is an issue that all professionals need to be alive to.
Funding is an issue for parents (compounded in this case because the father had been represented through the Official Solicitor in care proceedings, and thus making a HRA application on his own was clearly something that was beyond him, and he had been fortunate in having lawyers who were prepared to assist him pro-bono whilst waiting for the O/S to pick the case up.

this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others [2011] EWHC 402 (Fam) and Wiltshire Council v N [2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.

 

(As we know, the exceptional circumstances in which funding might be given under LASPO involve cases where failure to provide funding would result in a person’s human rights being breached – the High Court here have set up a situation in which the child’s article 8 rights would be breached, and given illustrations of how vital it is that parents are represented to fight those – as we know from Airey v Ireland, it is not sufficient for the State simply to say that the State has given a person rights, if the person can’t actually access them or exercise them. This is setting up a judicial review for the future, I suspect)

 

A key question here is, where does this leave Neath Port Talbot? If the major feature of a Care Order over a Supervision Order is the power for the LA to remove the child (or that implicit threat) and the power/threat is neutered, what on earth is the value of having a Care Order at home (other than duration – a Care Order can last until the child is 18, whereas a Supervision Order is limited to one year at a time, up to a maximum of three years)

For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.

 

An important case – I expect it to feature in the next view from the President.

 

 

 

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Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

10 responses

  1. Jerry Lonsdale

    I am thinking back to a matter mirrored to this one back in 2009 and that particular matter went before Messrs Wall, Waller and Ward, in the deliberations that was had there was that no matter the steps the parents took they could not prevent removal because the L.A had overriding powers contained within Section 33 of the CA 89,

    Section 33 is as well not very rarely debated, but it does have some important issues in that.

    33 Effect of care order.

    (1)Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

    (2)Where—

    (a)a care order has been made with respect to a child on the application of an authorised person; but

    (b)the local authority designated by the order was not informed that that person proposed to make the application,

    the child may be kept in the care of that person until received into the care of the authority.
    (3)While a care order is in force with respect to a child, the local authority designated by the order shall—

    (a)have parental responsibility for the child; and

    (b)have the power (subject to the following provisions of this section) to determine the extent to which

    (i)a parent, guardian or special guardian of the child; or

    (ii)a person who by virtue of section 4A has parental responsibility for the child,

    may meet his parental responsibility for him.
    (4)The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.

    (5)Nothing in subsection (3)(b) shall prevent a person mentioned in that provision who has care of the child] from doing what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting his welfare.

    (6)While a care order is in force with respect to a child, the local authority designated by the order shall not—

    (a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made; or

    (b)have the right—

    (ii)to agree or refuse to agree to the making of an adoption order, or an order under section 84 of the Adoption and Children Act 2002], with respect to the child; or

    (iii)to appoint a guardian for the child.

    (7)While a care order is in force with respect to a child, no person may—

    (a)cause the child to be known by a new surname; or

    (b)remove him from the United Kingdom,

    without either the written consent of every person who has parental responsibility for the child or the leave of the court.
    (8)Subsection (7)(b) does not—

    (a)prevent the removal of such a child, for a period of less than one month, by the authority in whose care he is; or

    (b)apply to arrangements for such a child to live outside England and Wales (which are governed by paragraph 19 of Schedule 2).

    (9)The power in subsection (3)(b) is subject (in addition to being subject to the provisions of this section) to any right, duty, power, responsibility or authority which [a person mentioned in that provision] has in relation to the child and his property by virtue of any other enactment.

    I argued in 2009 that that particular section as being one that prevented any court intervention in the plans the Local Authority may have to remove the child from the parents care if the L.A had the section 31 order, Wall LJ as he was then quoted parents and in effect the courts were restricted by section 33 and were in my opinion “over a barrel”

    I have never been comfortable when the L.A have full Care Orders and permit the Child to remain at home, for these very same reasons, however, with the caveat now added it will go some way in to prevent any possibility of the placement breaking down, well, one can only hope,

    The best approach I personally feel which I am testing on two particular matters at the moment is that the other possibility to the placement of the child with parents under the umbrella of a care order is that should the matter rather follow the Placement with Parents Regulations (1991)?? that would avoid any disingenuous relationships between both parties,

    the negative side to PWP 1991 is that I have found each Local Authority have their differences and interpretations of such regulations

    PWP 1991 can be found here http://www.legislation.gov.uk/uksi/1991/893/introduction/made

    I am very happy this has finally reached the stage to be debated and we now have an Authority to digest,

    • Placement with Parents Regs are now dead, Jerry. It is all Care Planning Regs now (they aren’t massively different in practice to be honest, and everyone still refers to them as the Placement with parents regs)

      It looks very much to me as though the modern Courts, particularly post Lady Hale’s comments in Re B, are taking a view that proportionality and article 8 trumps the division and separation of powers between the LA and the Court that Wall LJ and his predecessors tended to follow. Well, at least until a decision of this kind goes up to the Supreme Court. And we know how long that can take.

      The inclusion of the word ‘necessary’ in s33 (4) which constricts the exercise of s33(3) (b) certainly unlocks the door to a proportionality and article 8 interpretation (“necessary” being held by Lord Neuberger to be construed in the same sense that Lady Hale construed ‘requires’ – as in “nothing else will do”

      There is certainly some interesting jurisprudence emerging at the moment. I don’t particularly disagree with some of the gloss that is being put on the statute, but it is fairly plain that the judiciary are indeed adding gloss to statutes rather than simply interpreting and clarifying ambiguities. Take Re S for example, which set out three criteria for allowing s32(5) extensions – those criteria appear nowhere in the Act – an Act that the ink was still wet on; those criteria now being included in the standard Case Management Order forms already.

      I am interested in Baker J’s final comments – if parents are to be given these rights, there has to be a way that they can actually exercise them – how the hell is a parent without a lawyer going to even KNOW they can make an application under s8 HRA, let alone know how to do it, and persuade a Judge who might not be familiar with this case?

      • Jerry Lonsdale

        I have always called it Placement with Parents, still do, just seems more easy for me and parents to understand.

        Wait a minute here,

        CPR – Care Planning Rules
        CPR – Civil Procedure Rules
        CPR – Cardiopulmonary Resuscitation

        Just making sure there is no confusion.

        I would go with the last one personally! breath some life back in to the system, or quick get an ambulance this one has flat lined.

        We are very close to the anniversary of the Re. B Supreme Court Judgment and well, it has been one hell of a ride in the last nearly twelve months, I have literally ran out of grey matter, I am though, still seeing and hearing of cases being determined without Re. B and Re. B-S compliance, although not many to be fair.

        In regards to the Article 8 matter I always thought the they had to be dealt with seperatly to any other proceedings, one issue I found when I filed a for a section 7 1 (a) deceleration (public body proposing to act unlawfully) a few years ago that opened the door to a further problem in that the Judge who hears the applications has to be a proper one versed in the aspects of the HRA, which if mind hasn’t failed me must be a high Court Judge or above, so where as, like you say how would an Article 8 matter rise with Litigants in Person or parents for that matter is a very good point indeed

  2. Reblogged this on | truthaholics and commented:
    DOESN’T the burning question engage Art. 6 too, ie, HOW to engage and secure those family human rights in practice – in order for them not to be merely theoretical and illusory?

    • Jean Robinson

      I was also particularly interested in P.13 of http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html
      The guardian reported that the level of stress and anxiety caused to the parents by the case meant that their child should not be left at home pending proceedings. On the basis of the extreme levels of anxiety we see in all parents faced with similar threats of losing their children, all could be immediately removed on the basis of that argument. This occurs even in professional families with very high IQs in both parents. For a list of other adverse effects see the letter we sent to Chief Medical Officers of Health in the UK.

      http://www.aims.org.uk/Journal/Vol20No1/childProtection.htm

      Jean Robinson, President, Association for Improvements in the Maternity Services

    • Yes, very much so – little value in having that right if you can’t get free legal advice to tell you about it, or exercise it for you.

      • Jerry Lonsdale

        Jean I have faced that scenario, for 5 months an ICO was in place while proceedings were continuing children remained at home, the 5 months only came to an end and children removed being the point in which the whole situation exploded, added pressures of court, meetings, et al simply strained the parent that the inevitable happened, the Authorities know there are concerns with the parenting capacity pre proceedings, so why on earth do they treble the anxieties by adding too it, I am still galled at the decisions on these types of cases, that all important step back never seems to be taken.

  3. Pingback: Final care order with child placed at home | Child Protection Resource

  4. Anonymous to you

    Well I do have to say have just put this forward again not for a care order but an injuction to stop placement will keep you updated

  5. Pingback: High Court judge allows parents appeal against taking of their son - Marilyn Stowe Blog

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