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Imaginary written submissions

[These are imaginary written submissions, in relation to an application for an Emergency Protection order  – in reality, one wouldn’t have the opportunity to make them, but they bear some resemblance to what the advocate representing the mother might have said in addressing the bench, though almost certainly in less florid and melodramatic terms.  I have been very careful, as any advocate would, not to misrepresent any facts]

  1. This application for an Emergency Protection Order is made by the Local Authority. The mother has had very limited notice of the hearing, and very limited opportunity to see the case put against her. She has had to defend her position and persuade the Court not to make this most draconian of orders without having the opportunity to see the Local Authority case in writing, or to put into writing her own account of events.

It is for those very reasons that the Courts have set down authorities that making an order of this kind is draconian, and requires “compelling evidence”,  particularly, the decision of RE X (A CHILD) sub nom RE X (EMERGENCY PROTECTION ORDERS) (2006) [2006] EWHC 510 (Fam)

  1. I will come on to those matters in a moment; but the Court should have in mind the context that to remove a child from a parent at any stage requires cogent evidence that there are reasonable grounds to believe that the threshold is made out, but that beyond that, that the decision to remove is a proportionate one to make far in advance of assessments or a final hearing bearing in mind the alleged nature of the risk, and that to do so at an Emergency Protection Order stage requires extraordinarily compelling evidence that it is effectively the only thing to do, it is an order of last resort.  And that it should only be contemplated if imminent danger is actually established.
  1. The legal context is then set out in Re X, and the predecessor case, also Re X. In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005]1 FLR 341,  

      Quoting from the earlier case :-

An EPO, summarily removing a child from his parents, is a ‘draconian’ and

‘extremely harsh’ measure, requiring ‘exceptional justification’ and

‘extraordinarily compelling reasons’. Such an order should not be made   

unless the FPC is satisfied that it is both necessary and proportionate and that

no other less radical form of order will achieve the essential end of promoting

the welfare of the child. Separation is only to be contemplated if immediate 

separation is essential to secure the child’s safety: ‘imminent danger’ must be

‘actually established’.



The evidence in support of the application for an EPO must be full,

detailed, precise and compelling. Unparticularised generalities will not


The sources of hearsay evidence must be identified. Expressions of opinion

must be supported by detailed evidence and properly articulated reasoning

  1. So there must be a serious emergency, to justify having such an important hearing in such a rush, and there must be compelling and detailed evidence that an EPO is the only real course of action, and the applicant has to establish imminent danger; the burden of proof is on them to prove that there IS, not on the parent to prove that there ISN’T.
  1. Let us look at what the Local Authority claim this “emergency” is.  The child is thirteen months old.  It is said by them that he has been known to Social Services throughout his life, and that is true. It is also said by them that he has spent a period of time in voluntary foster care, and that is also true. He was in voluntary foster care for around two months, but has been at home with mother for nearly six months since then.  There have been periods of his life where he has been on the child protection register – the same is of course true of many children.
  1. It is accepted that there are positive reports from the health visitor and childminder, and the social worker accepts that the mother’s presentation around the child, and the child around her, is illustrative of a loving relationship.
  1. They say that the ‘emergency’ triggering event, is that yesterday, the mother took the child to a hospital appointment, and that the child had visible bruises.  
  1. That is also true. But what is also true is that the doctor who examined him has said is that the child was unwell and miserable and probably had a viral infection, that he had a history of aggressive behaviour including head-butting the floor, and that there is nowhere within the medical report a conclusion that those bruises were non-accidental, or likely to be non-accidental, or could possibly be non-accidental.  
  1. The best evidence about these bruises comes from the paediatrician – she saw the bruises, she saw the child, she took the history, she is after all, the expert in these matters. That’s the evidence before the Court, and it concludes that the bruises were caused accidentally. We deal in evidence, not mere suspicion.  Where there is suspicion and it is relied upon, there must be evidence to support that suspicion.
  1. The Local Authority say that there is a history of previous bruising, and again, that is true. But it is not for them to put two and two together and make sixteen. The doctor examining him saw the child, took the history from mother, read the previous history, and if the doctor felt that there were reasonable grounds to believe that the bruises were non-accidental, then she would have said so when asked to prepare this report for Court.
  1. The case has been brought to Court, for what I have to remind the Court is the most draconian type of order, requiring compelling evidence, because the social worker has made her own diagnosis that the doctor, who is qualified to examine children and draw conclusions, has got this wrong.
  1. Well, in the spirit of generosity, perhaps the doctor has got this wrong. Perhaps, and this is not the mother’s case at all, there is a history here which needs looking at with a fresh pair of eyes. The mother is confident that another paediatrician will come to the same conclusions and that these lingering suspicions will be removed. 
  1. But to REMOVE this child from mother’s care, because the paediatrician might have got this wrong, cannot be the right thing to do. If the Local Authority consider that there is something here which needs to be investigated, then they can issue an application for a care order, set out their concerns and their evidence for those concerns on paper, and the Court can consider whether an independent paediatric assessment of the child is warranted.  That is an argument for another day.
  1. What these circumstances do not add up to, in any way shape or form, is the sort of compelling evidence that this child has been suffering significant harm or is likely to do so, and that he should be removed from his mother’s care and put in foster care, much less so on such short notice, with such a paucity of evidence before the Court.  
  1. The Local Authority point to some historical bruising – seven months ago, there was some bruising. The mother says that this was caused in play with some other children. A medical report at that time felt that it was suspicious and might be non-accidental.  The child came into foster care during a police investigation – the mother cooperated with that, and as we have heard, two months later the child came home.
  1. What they try to do now, is to add that, where they have a medical report which does give rise to some legitimate concern, to the situation today, where they have a medical report that raises no concerns at all, and try to force the two things together. As I said earlier, this is a case of trying to make two and two make five.
  1. Respectfully, they cannot do that. If we had been here seven months ago, with the report from the doctor saying there were suspicious bruises, then perhaps there would be a case to deal with. But something can’t be an emergency, if you wait for seven months to bring it up. Something can’t require the court to urgently intervene to protect the child if the LA had him in care and were happy to send him home five months ago.  And something that the paediatrician who saw the child yesterday already knew about and had read in the medical records, when they decided that the child was safe to go home from hospital with his mother, can’t now become evidence that the child is not safe at home and has to be removed. 
  1. If the previous bruises made the paediatrician yesterday look at the bruises with a more cynical and suspicious eye, then that is one thing, but that isn’t what happened. In the light of knowing about those previous bruises, the paediatrician was satisfied that what mum was saying, what her own eyes showed her – an aggressive hyperactive child with a temperature and a virus who was head-banging, had got those bruises by doing just that.  
  1. The Local Authority essentially say, “well, she should have done”, but that is neither here nor there. In terms of actual evidence, she didn’t. There is no medical opinion that those bruises seen yesterday were caused non-accidental.
  1.  This isn’t an emergency. The child is at home with mum, safe and well. The hospital didn’t feel the need yesterday to say “this is risky, we can’t send him home”.  
  1. The child doesn’t need protection. There is no evidence of significant harm here. The highest it can be put is that the Local Authority would want a fresh medical opinion looking at all the notes.
  1. There is no need for an order, particularly the most draconian order that can be made by a Court. 
  1. Is the evidence here “extraordinary compelling”?   Have the Local Authority actually established imminent danger?   In setting out why the evidence of the social worker, who has not seen these bruises, should be preferred to that of the independent expert paediatrician, who has, have the Local Authority provided evidence which is “full, detailed, precise and compelling”?  With “detailed evidence and properly articulated reasoning”?
  1. In my respectful submissions, they have come nowhere near, and the application should be refused.



Well, unless you have been under a rock for a few years, you will know that the name of the child in the case is Peter Connolly, and you probably twigged that very early on.   


You will also know that the Local Authority DID NOT issue an emergency court application, on either the day the paediatrician saw the child or the day after.


If they had, would it have saved Peter? Probably not, as you can see here, the case against making the EPO is overwhelming.   I have to be candid and say that if they had rung me, with the medical opinion being as it was, I would have advised that an EPO had no prospect of success. It wasn’t even finely balanced.


You may be thinking that I have stacked the deck here, by making it an Emergency Protection Order, where the bar is so much higher following the Re X decisions than the test for an ICO. 


Well, I haven’t stacked the deck, because there were just two days, and only 1 full working day between the paediatrician seeing Peter and him being killed. So an Emergency Protection Order was the only order that Haringey could have applied for that would have had him out of the home before he was killed.


If such an application had been made, it would have been resisted, along similar lines to this – the test for an EPO is very high, it needs extraordinarily compelling evidence, the Court need to be satisfied that there is actual evidence of imminent danger, and that the paediatrician who examined the child didn’t make a diagnosis of NAI.


That’s not to defend Haringey – there were clearly mistakes made, largely at the point when having got an earlier paediatric report saying non-accidental bruises, they didn’t issue. Nor did they issue at the point where they had the child in foster care and the point came where he was going home to mother unless they got a Court order.


Nor is it to castigate those who would represent a parent in this situation. Far from it, those are exactly the points that should have been made, and any barrister or solicitor representing a parent against those facts would have been pretty shabby if they hadn’t left the court room with their client going home with the child.

If I’d been representing Peter’s mother on that day, with those facts, I would have fought to make sure the EPO wasn’t made. And it would have been the right thing to do, regardless of how it later turned out. The Court have to decide cases on evidence, and in this case, the medical evidence to justify an EPO wasn’t there.


My point is that it would have been extraordinarily hard to save baby Peter’s life AT that critical point, the last chance to intervene to save him simply would not have worked. If the LA had flown in the face of the paediatric evidence and sought an EPO, they would not have got one. The best they could have hoped for would be that there would be an ICO hearing a week later. By which time it was too late.


From what information there was, at the last possible moment to save him, you would not have persuaded a Court that he needed to be taken into foster care there and then.  It is very easy to make all sorts of different decisions in hindsight, but I do believe that it is worth bearing that in mind  – the media portrayal is that this was an inevitable course of action that could have been averted at any time, but I would suggest that things often appear inevitable when you are working back from a known outcome.  If you had been there, at an EPO hearing on that day, with the facts that were known at the time, you would have been appalled if the Court had granted the EPO.  


[of course, had the paediatrician seen all that was there to be seen, then firstly Peter would have remained in hospital instead of going home, and secondly, there would have been compelling evidence of imminent danger, and the whole case is transformed]

About suesspiciousminds

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

3 responses

  1. If a learned professional like yourself can satisfy herself that the legal system could and should not have done anything even at that late stage, then there is little to be said for your practice of law

    • I didn’t say “should not”, but there is a vast chasm between the way the press report the case – that social workers were just blindingly incompetent, and the reality, which is that the law attempts to balance two very difficult competing principles – keeping children safe, and keeping families together. That very difficult balance will go wrong, in both directions. Tragically, when it goes wrong and a child isn’t kept safe, it makes the national news and prime ministers in waiting go on breakfast tv and call for sackings. When it goes wrong the other way, and children are wrongly removed from families, there’s no such uproar. I think it might be better to have an honest debate about the difficult task professionals face in this field, rather than the simplistic media view that all of these things are just someone bungling each and every time.

      It’s a deeply unpalatable truth, which is why I wrote the piece. If Haringey, who have been hammered in the press, had actually gone to court to try to save Baby Peter the day before he died, they would not have succeeded, on the evidence that they had available, in getting the court order that could have saved him. If they had done so seven months earlier, they might have done, they might not.

      • I had not realised this was about ‘Baby P’.

        The incompetence of the social workers was unbelievable right to the end. The video shown on TV of the interview between a social worker and Baby P’s mother showed up she did not conduct a proper enquiry. The fact that bruises had occurred previously would require the chocolate covering of face of the child should have been not just questioned but checked out, as to concealment, robustly on the visit, not an excuse made by the mother believed.

        Since social services are the ones ultimately who delve into the family at close hand, more engagingly over time, Haringey is to blame – as are other authorities who have staff now who create false ‘paper trails’ to cover up what they do wrong or fail to do. Not recording information immediately and then only weeks/ months later is common allowing an opportunity for ‘memory distortions’ and lies to be written. It happens believe me. Unfortunately forensic assessment of documentation over time is rare.

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