Misuse of police protection – human rights claim

The High Court have ruled on a case involving the misuse of police protection in Re A-W & C (children) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B41.html

Section 46 of the Children Act allows for a police officer to remove a child from a parent (i.e without an order) for a period of up to 72 hours.  [Most professionals call this removal under police protection a PPO , in echoes of an EPO, but it is not actually an Order].  The decision is made by a senior police officer, not the Court.

In this case, the removal under police protection happened DESPITE solicitors representing the mother alerting the Local Authority that they were seeking a declaration from the High Court that the use of those police protection powers would be unlawful.

When the High Court dealt with the interim care order hearing, the child having been removed shortly after birth by the police, they ordered that a mother and baby foster placement be found, to reunite the mother and baby.

It is alarming how something like this could occur, the Courts having made it extremely plain in both Langley v Liverpool 2005 and A v East Sussex 2010 that in almost every case where removal is sought, this should be by way of a Court’s decision, not the use of police protection. The words used in those cases were not vague, they are crystal clear

“It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is, for good reason, usually a judicial as opposed to an administrative decision. The court is the parent’s safeguard against arbitrary or inappropriate action by a local authority. Thus in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Her Honour Judge Finnerty’s view that both she and the Family Proceedings Court were, inappropriately, being presented with a fait accompli.
67.

“For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional.”

The President goes on at paragraph 68, having dealt with some of the facts of that case:

8. “In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be ‘wholly exceptional’.”

And even if nobody reads law, then the police ought to have regard to the Home Office circular which gives advice on the use of those powers

1. Home Office Circular 17/2008, to which I have already made reference, helpfully provided to me by Mr Firbank. That Circular issues guidance to the police in the use of their powers under section 46. There had been earlier guidance both in 1991 and 2003 and I suspect that the 2008 guidance was issued after the Liverpool case to which I have made reference to reflect the law as it emerged from that case. Paragraph 3 of the guidance reads as follows:

“The provisions of the Act aim to strike the proper balance between the provision of speedy and effective help to children at risk and unwarranted interference in family life. The underlying principle of the Act is that the welfare of the child is paramount.”

The guidance goes on to say at paragraph 15:

“Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court.”

It goes on to say at paragraph 16:

“All local authorities should have in place local arrangements (through their local Chief Executive and Clerks to the Justices) whereby out of hours applications for EPOs may be made speedily and without an excess of bureaucracy. Police protection powers should only be used when this is not possible.”

In this particular case, the Local Authority had concerns about the safety of the child at home (such concerns would have entitled them to commence Court proceedings and perhaps even to seek a plan of separation). The mother had got legal advice, was talking to the Local Authority, was not threatening to leave the hospital or go home – she did not agree section 20 voluntary accommodation in foster care, she wanted the opportunity to fight the Local Authority’s case in court.

Because the social worker and a police officer turned up at the hospital, mother’s representatives very quickly worked out that the child was going to be removed under police protection (i.e by administrative decision not a judicial one) and wrote to the Local Authority indicating that this would be unlawful and that they would be seeking a declaration from the High Court to this effect.

That didn’t dissuade the LA from their unlawful course of action, and the police duly removed the child.

By the time of the Human Rights claim, the LA had put their hands up to the breach of the mother’s human rights.

However

They would not concede any declaration that the local authority should have sought an emergency protection order pursuant to section 44 of the Children Act 1989 when they erroneously believed that a contested ICO could not take place. The police have made no concessions at all as to the process adopted by their officers on that day.

And therefore the Court had to deal with the matter and give judgment

This was the written evidence of the police officer about the decision to remove

I turn back to DC K’s document. This document is a Lancashire Constabulary pro forma document prepared, presumably, in compliance with the Home Office guidance that I have read. It sets out the identity of the officer taking the child into protection, that is DC K. It sets out the details of the child. It sets out her location when taken into police protection, namely neonatal ward RLI. The paragraph under the heading “Reasons for Taking Child into Protection” reads as follows:

“Baby is currently subject of a child protection plan (neglect). Parents under investigation on suspicion of physical assault towards older sibling.”

Those are the reasons as they are set out in their entirety on that form. The form goes on to record that the child was taken into police protection at 12.40 on Monday, 18^th February and records the address to which she was taken. It seems to me from the evidence that the point at which the advice was taken, during the morning before attendance at hospital, was likely to be when that document was prepared.

You might be thinking that this is rather sketchy on the critical issue – why it was necessary to do the removal without going to Court. The Court agree with you.

I pause to say that the grounds set out in that document appear to me to be thin and poorly reasoned. The use of police protection was seen by DC K as necessary by reason of the mother’s lack of co-operation and failure to agree to section 20. That was referred to by both the social worker and DC K in evidence repeatedly as a mother refusing to work with or engage with the local authority. References were made in the written evidence of both witnesses to the mother’s solicitor’s demands as if those demands were in some way obstructive. That did not seem to me to be a proper approach to a young and vulnerable parent who was merely following her own legal advice properly given. In any event the social worker and two policewomen – I think there was also a student social worker there as well – met up at the hospital that morning. The social worker had invited the police to come and they had gone ready to use section 46 if necessary. There can have been absolutely no other purpose to the police officers attending on that day and this is confirmed by DC K’s statement (from G203 in the Court bundle):

“On Monday, 18^th February 2013 Michelle Lee contacted me and said that the baby was ready for discharge but the parents are not agreeing to voluntary accommodation. I agreed I would attend the hospital to try and encourage the parents to engage with social services. I updated Inspector BL about the situation. Myself and DC L attended the neonatal to see the mother and father.”

It emerged during the evidence of the social worker that DC K was quite set upon asserting a need for separation to the social worker. I, frankly, do not understand why the efforts of the local authority were not directed at getting an urgent hearing to scrutinise the separation rather than at that stage enlisting the police to secure one as a backstop. I note again that the mother was not threatening to remove A from the hospital. Equally the hospital was reporting her care of A over the weekend as having been good. ML did have conversations with the local authority solicitor during the morning. She told me that she did not think a hearing on a contested ICO would be achievable until Wednesday or Thursday of that week and she did not consider it safe for mother to care for A until then. I think she was particularly concerned about overnight care. Privilege as to advice about why an EPO should not be used was not waived and I, therefore, do not know why that alternative, which would have afforded mother and father some voice in decision-making, if not the children’s guardian as well, was not considered. In fact, had that alternative been investigated it would have become clear that a contested ICO before me was possible that afternoon. The real significance for me, therefore, is not whether or not the local authority legal advice as to EPO would be preferable but as to whether any effort was made to investigate or re-investigate whether an application for an EPO or an ICO could take place.

1. One of the problems in this case was that those at the hospital, the social worker and the police officer, did not keep themselves informed about when the earliest court hearing could take place. They were not asking their superiors to press for such a hearing. I consider that both finding out and pressing for an earlier hearing were reasonable expectations in respect of both the social worker and the police officer in executing their duties under their statutory responsibility. Quite apart from this, even if a contested ICO hearing were not possible until the Tuesday or Wednesday or Thursday there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.

The Court went on to remind the Local Authority about Re CA, and that s20 consent must be freely given, not “compulsion in disguise” and that having a police officer present during the discussions would have led to a legitimate complaint that the principles of s20 had been breached, even if mother had agreed.

This is bolstered by the existing caselaw

1. The second is Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

“To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order.”

It isn’t a genuine discussion about s20 consent if there is an explicit or implicit threat that the police will remove the child.

The police officer gave evidence (bear in mind that the police position was that the use of powers was lawful and not a breach of mother’s human rights, so the idea of giving evidence is to persuade the Judge of that)

1. I heard oral evidence from DC K. I have already referred to her statement, but I have not yet read into this judgment the sentiments contained in that statement at the end, which I consider to be somewhat alarming. She says this:

“I can categorically state that I was in no doubt that a police protection order was absolutely essential in order to keep A safe. I came to that informed decision having paid great attention to the background of this family, in addition to my recent involvement with them. Basically if this child had been allowed to return home with the parents then I would have been neglecting my role as a police officer. I am a child protection officer and that is what I did on that day. My actions were not at the instigation of the local authority.”

She did not draw back from that stance during her oral evidence. She is obviously a very experienced officer. She demonstrated pride in the role she holds in child protection. Her demeanour is pleasant and sensitive and I can well imagine that she has an excellent manner with both the parents and the children she encounters in the course of her duties. However, I consider her approach on 18^th February in taking A into police protection at the point in time that she did to have been fundamentally flawed. It was plain that she went to the hospital with the intention, were mother not to agree to accommodation, of taking the child into police protection.

1. Euphemistic language was used during her evidence about encouraging parents to co-operate or engage with the local authority. However, it is plain that in DC K’s mind the co-operation could only take one form, namely agreement to section 20. When the mother, acting on her solicitor’s advice, refused to consent DC K encapsulated her was “We can’t just go up there and be blocked”. Later I repeated this in asking her questions myself and she seemed to think that the word “blocked” was one that I had used and not her. I am quite clear in my note that those were her words. She failed to weigh into the balance the fact that the parents were co-operating with the local authority in every regard except with regard to a separation pursuant to section 20. They were not threatening to remove A; they were responding to their own legal advice; they had cared for A well on the ward. Not only did DC K have a low threshold for the need for intervention, which to my mind did not arise at all unless or until the hospital was to insist upon discharge and at that point the parents sought to go home with A, but she also seemed to pay little or no heed that the S46 route into to the care of the local authority is the one to be least preferred, affording, as it does, no right of argument or judicial scrutiny.

I refer again to the document that she wrote, as I said probably in advance of attending the hospital, countersigned by her Inspector. It seems to me that it would be strongly arguable, that, even had the decision to go by section 46 occurred out of hours, the justification set out in that document is insufficient. I know that DC K in evidence advanced a lot of other reasons in addition to those set out in the document, but it is very important that the documents to be kept as records of when an authority is to take an action of such consequence as this one contain full reasons even if in summary and note form. She and Inspector BL both took as read that there could be no court hearing until later in the week and that an EPO was not an available route. I consider that both DC K and Inspector BL as the designated officer had a separate duty from the local authority to ensure, not only that separation and protection were absolutely necessary, but also that this route to it was absolutely necessary and that there was no prospect that a separation could be scrutinised or, if necessary, endorsed by a court. She should have been asking herself, “Why do I have to make this decision now?”. So, however impressive DC K was in terms of her commitment and her demeanour, her failure in exercising such a draconian power to establish that this route to protection was absolutely necessary was unimpressive

The Court made its decision about whether the police action had been unfair and a breach of human rights

The separation of a parent and child by any authority is a most serious act and it must be necessary and proportionate. The gravity and importance of that principle is all the more acute where that child is a newborn and magnified when the mother of that child is herself a child. Protection of the child, of course, is a foremost priority but protection does not require in every case an enforced separation. There are a whole range of remedies before enforced separation, which is the absolute last resort. Decisions as to whether that protection is necessary should be made by a court, and decisions as to what course is the least interventionist necessary should be made by a court. There was a duty, it seems to me, not just on the social worker but on the police themselves to look at the route into protection. DC K did acknowledge in her evidence that separation is always the last resort. It did not seem to me there was any real acknowledgement that section 46 as the route of that separation is also the route of last resort. As I have said, the local authority has made concessions. The police are completely unapologetic. DC K was absolutely convinced of the need for intervention but she is ill equipped to look at the form of protection needed. Her assumption was that the local authority plan for separation was the only route and she made no or no sufficient effort to find out whether a court was available to weigh up the alternatives. She was far too ready to assume responsibility and take the decision without acknowledging that it was for a court to determine what was necessary and proportionate. That type of decision making is quite understandable late at night, at weekends, at Bank Holidays, in the context of parents determined to not work with the local authority, demonstrating violence or threatening to snatch a child from where that child is considered to be safe. None of those things applied here.

The mother had not sought any financial compensation, wanting just the principle to be decided

1. The relevant parts of those declarations read as follows:-

Lancashire County Council has acted incompatibly with the rights of CMC, as guaranteed by Article 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950 in that it:

•    Failed to complete its pre-birth assessment and that consequent pre-proceedings steps were not taken (article 6 and 8).

•    Failed to issue its application for a care order and an interim care order at the time of A’s birth to enable there to be consideration by the court of whether to exercise its powers prior to her discharge from hospital. (article 6 and 8).

1. I note what was said by Mr Rothery in his submissions that it is the experience of the children’s guardian in this case that this is not an isolated incident of an over willingness to use section 46 in this area. If that is the case it is very much to be hoped that better practice will emerge from this hearing, hence I have taken some time and trouble to deliver that part of the judgment.

[I continue to hear about misuse of s46 powers from a variety of parts of the country, and I believe that the Guardian was right here]

The principles in this case really ought to go without saying, but it seems that the lessons from Liverpool and East Sussex still haven’t been learned.

If the police are exercising their power under s46, the fundamental question is not “Is this child at risk of harm” but “What are the reasons why a police officer should do this NOW, rather than a Court decide it?”

There are circumstances in which the use of s46 powers will be warranted (the shorthand that used to be used when I started was “life and limb” – i.e the harm or risk of harm was so great that waiting even an hour would be unthinkable), but the use of s46 is clearly still prevalent in the country as a speedy and efficacious way of removal before going to Court, and that is fundamentally wrong.

I would be amazed if the next mother this happened to was as sanguine as this one was about compensation.