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Human rights claim – £12,000

 

This is the decision of Bellamy J, sitting as a Deputy High Court Judge.

 

Re H (A child) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/38.html

 

In this case, the LA accepted that their actions had breached the parents article 8 and article 6 rights, and the only issue was whether there should be a financial penalty, and the scale of it.

 

I’ve rather given the whole plot away (in the style of a cinema trailer that shows you everything that happens in the film) in the title – the parents were awarded £6,000 each.

 

What was the nature of the breach? Well, in effect it was that the LA had obtained written consents from the parents for their child to be in voluntary care, but had not followed the principles of fairness in ensuring that the parents actually understood what they were signing up to and their right to say no.  (You will recall that the High Court gave a powerful precedent on this issue in Re C – particularly where a parent might be lacking capacity)

 

In this case, to be fair, the social worker picked up straight away that these parents might have some cognitive or learning difficulties.

  1. The local authority conducted an investigation pursuant to s.47 of the Children Act 1989. The assessment was completed on 29th May. The local authority considered that the parents had concealed the pregnancy. The local authority concluded that H was at risk of significant harm from her parents due to the concealed pregnancy, the parents’ learning needs and their limited support networks and that it would therefore be unsafe to discharge H into her parents’ care at that time.
  2. During the course of the assessment the local authority social worker noted that the parents’ learning difficulties were evident during discussions and that the parents appeared to have difficulty in understanding and processing information. She discussed her concerns with her manager. She did not take any steps to explore this issue further

 

Thus missing the boat. That would have been the time to get a cognitive assessment done, to establish what the parents issues were and find out the best way to work with them.  It didn’t happen, and arrangements were made for the child without any real consideration of whether the parents properly understood what they were agreeing to.

There is no record of the parents having been provided with an explanation of all of the available options or of the consequences if they did not consent to H being cared for by Mr and Mrs B or of there having been any discussion about how long this ‘informal’ placement might last. They were advised to seek legal advice if they were unhappy with this plan and were provided with a complaints leaflet. The parents did not seek legal advice.

 

 

The case moved to another social worker, who again picked up on the learning difficulty issue immediately.

 

The case was transferred to the local authority’s long-term childcare team in August 2013. The social worker later raised concerns with her manager about the lack of progress in completing an assessment of the parents. She suspected that this may be linked to what she believed to be the parents’ learning disability. The social worker was also concerned that the parents appeared not to have fully understood what they were agreeing to when H was placed with Mr and Mrs B. The parents were anxious to know when H would be returned to their care

 

Did that resolve it? Well, not quite.

  1. In October 2013 the Team manager sought advice from senior management. This led to a legal planning meeting being convened. The meeting took place on 12th November 2013. The meeting recognised that the placement of H with Mr and Mrs B was not a private fostering arrangement and yet was clearly a ‘placement’ as it was initiated by the local authority. The meeting decided,

    (1) that the parents should be asked to give their retrospective consent to the placement of H in the voluntary care of the local authority pursuant to s.20 of the Children Act 1989 with effect from the date she had been with Mr and Mrs B (7th June 2013);

    (2) that there should be an urgent cognitive functioning assessment of both parents in order to inform the local authority assessment and how best to work with the parents.

    (3) that if the parents refused to consent to H being accommodated under s.20 and placed with Mr and Mrs B and/or to co-operate with arrangements for a cognitive functioning assessment, then the local authority would commence care proceedings.

  2. It was also agreed that the social worker would meet with the parents to discuss the decisions made by the legal planning meeting. It was accepted that H, her parents and Mr and Mrs B had been subjected to unacceptable delay and uncertainty and that the need for conversation with the parents was now urgent.

 

 

Absolutely right that there should be a cognitive assessment. But to try to get the parents to sign a s20 agreement when there was a doubt as to their capacity can’t be right. This is of course after the Re CA decision, so obviously some people haven’t read it. Let me set out those principles again

i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under Section 20 to have their child accommodated by the local authority and every local authority has power under Section 20(4) so to accommodate provided that it is consistent with the welfare of the child.

ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

a) Does the parent fully understand the consequences of giving such a consent?
b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?
c) Is the parent in possession of all the facts and issues material to the giving of consent?
vi) If not satisfied that the answers to a) – c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

viii) In considering that it may be necessary to ask:

a) what is the current physical and psychological state of the parent?
b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?
c) Is it necessary for the safety of the child for her to be removed at this time?
d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?
ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of Section 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.

 

IF YOU DOUBT that a parent has capacity, you really shouldn’t be getting them to sign ANYTHING, particularly not a section 20 agreement.

 

Back to the case – the cognitive assessment didn’t arrive until 1st April 2014 – yes, eleven months after the issue was first spotted, and six months after it was spotted the second time around and a Legal Planning Meeting recommended it.

 

Perhaps my experience is unusual, but having worked at seven local authorities, I’ve never had a difficulty in obtaining a cognitive assessment – they aren’t reports that take a long time to produce – you can normally get them within 2-3 weeks of asking the doctor to provide them.

 

Oh wait, I’m wrong. That was the date of the APPOINTMENT. The report itself didn’t turn up for another 8 weeks, at the end of May. So yes, a year had passed between thinking the parents had learning difficulties and getting a cognitive.

 

To paraphrase Edmund Blackadder, we may have been at home for Mr and Mrs Cock-up here.

 

Here’s what the cognitive assessment said

  1. It is appropriate to set out Dr James’ conclusions at this stage in the narrative though she did not, in fact, report until 27th May 2014.
  2. With respect to the mother, Dr James says that all of her scores fell within the borderline range, indicating consistently limited functioning across all areas. With respect to the father, Dr James says that:

    ‘While [the mother’s] scores give a consistent picture of Borderline abilities, the distribution of [the father’s] scores, ranging as they do from Learning Disability, through Borderline to Average, is unusual, and presents a complex picture. As a result of this intellectual profile, [the father’s] ability to understand, process and use verbally mediated information and concepts is significantly below what might be expected, given his ability in other areas. This is likely to present a very real limitation for him in everyday life. The most likely explanation for this very specific impairment is that it is related to his epilepsy.’

  3. Dr James gave advice on how the parents should be approached. With respect to the mother, Dr James said that:

    ‘As far as information and advice presented verbally are concerned, [the mother] has a reasonable ability to understand this, and I would expect her to be able to cope well with the kind of discussion likely to take place during a parenting assessment. She will seem at times to be a little slow to respond to what is said, but if you wait for an answer she will give it in a way which shows that she has understood the question.’

    With respect to the father, Dr James advised that:

    ‘Allowance will need to be made for [the father’s] specific difficulties with verbal comprehension…Of particular importance in the course of the assessment will be not expecting him to portray verbally what he is capable of, since he can evidence this more effectively through practical means. In other words, his behaviour rather than his descriptions will be the best guide to what he can achieve.’

  • In a subsequent letter, Dr James gave the following further guidance so far as the father is concerned. She said that, 

    ‘The following guidance is intended to help his Solicitor to support him to have full capacity in the Proceedings. At the beginning of an appointment, [the father] can present with rushed speech, and a jumbled account of recent events. He needs a little time to settle down, after which he will become more coherent, and can be systematically led through the information he wants to convey. He responds well to direct questioning. Advice given to him should be expressed carefully to avoid ambiguity. Ideally, each sentence should contain one idea only, with a pause at the end of the sentence for this to be absorbed, before offering the next piece of advice or information. It can also be helpful to specifically remind him to listen carefully to important points.’

 

But you know, maybe these parents were unknown quantities and that explained some of the problem. Nope.

 

  1. Given that the father was in the care of this local authority during his own childhood, much of this information about his presentation and functioning should have been contained in the local authority’s earlier case file and should, therefore, have been available to the local authority when it became involved with the father again following the birth of H.
  2. The local authority finally issued these care proceedings on 29th April, 2014. H was born on 16th May, 2013. She was, therefore, fast approaching her first birthday when these proceedings were issued. It took this local authority almost a year to issue these proceedings. That delay was unjustified and inexcusable.

 

Where the Local Authority did recover some mild credit was in ‘fessing up once these mistakes came to light, rather than trying to defend the indefensible.

  1. Sonia Grant, Service Manager in the local authority’s Children In Need Service, filed a written statement. Most of the narrative set out above is based on Ms Grant’s evidence. Ms Grant concedes that in this case the performance of this local authority has fallen below acceptable standards. She says,

    ‘4.1 The local authority’s review of the events surrounding both situations has identified serious practice issues relating to the identification of [the mother’s] capacity to give consent, particularly in respect of the placement with Mr and Mrs B in June 2013.

    4.2 The parents’ capacity to consent was not fully considered or explored at all the key stages of the assessment and decision-making process…

    4.5 The placement with Mr and Mrs B was clearly a ‘Section 20 placement’ made by the local authority, who would have had to place H in foster care and possibly initiate care proceedings if Mr and Mrs B could not care for her. The Legal Planning Meeting held on 12th November attempted to bring the matter back on track to avoid further delay, but there was a significant delay in arranging the cognitive functioning assessment which only added to the delays within the case.

    4.6 The local authority accepts that the social work judgments and decision-making within this case fell below what was required at key points, and failed to fully take account of the combined complexities of the parents and H’s competing needs in a timely and child-centred way.

    4.7 The issues about parental capacity to give consent that occurred within this case have highlighted the urgent need to ensure social workers are aware of their responsibilities in this area. Therefore, the local authority intends to urgently address this training issue to avoid this happening again.’

  2. It is against that background that the local authority accepts that it has breached the parents’ rights under Article 6 and Article 8 and that it is appropriate for the court to make declarations. With respect to the declarations sought by the mother, the local authority concedes that it has acted in breach of the mother’s Article 6 and Article 8 rights in that it:

    1. failed to issue proceedings in a timely manner;

    2. failed to involve the parents in the decision making process;

    3. failed to take steps to explore concerns regarding the mother’s lack of understanding [though making the point that at the meeting on 18th November 2013 the social worker was satisfied that the parents were able to provide informed consent to s.20 accommodation at that stage];

    4. should not have sought the parents’ consent on 31st May 2013 or taken their proposals of alternative carers as consent to the placement with Mr and Mrs B;

    5. placed insufficient weight on the parents’ clearly expressed wish to care for H themselves;

    6. failed to explain all available options, timescales and the consequences if they did not consent to H being cared for by Mr and Mrs B;

    7. should not have asked the mother to sign an agreement on 3rd June 2013 consenting to placement away from the parents;

    8. permitted H to be cared for away from her parents against their expressly stated wishes;

    9. failed to acknowledge that they had placed H with Mr and Mrs B or to undertake a written viability assessment of Mr and Mrs B [though noting that it did undertake routine checks, interviews and a review of the accommodation in the process of making a decision that it was a safe arrangement for H]; and

    10. significantly delayed in assessing the parents’ capacity to parent H.

  3. With respect to the declarations sought by the father, the local authority concedes that it acted in breach of the father’s Article 6 and Article 8 rights in that it:

    1. failed to provide him with appropriate information as to the consequences of not consenting to s.20 accommodation;

    2. failed to consider or explore his capacity to consent to s.20 accommodation before removing H from his care;

    3. permitted unacceptable delay and uncertainty in the assessment process; and

    4. by its flawed procedures, deprived the father of living with H for the first year of her life [though being of the view that both parents have complex histories and difficulties and that H’s removal pending assessment of the parents was necessary to ensure her safety].

 

Having established those breaches, the Court then turned to the issue of damages. It is too law geek for the general public, but the judgment does set out an helpful analysis of the law and judicial approach towards making punitive awards in family law cases. It would be a decent starting point for skeletons for and against the principle.

 

  1. In the case with which I am now concerned H is these parents’ first child. Whilst it may be the case that had the local authority issued care proceedings soon after H was born an interim care order would have been made, the fact is that proceedings were not commenced promptly. They were not issued until shortly before H’s first birthday. It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
  2. I am in no doubt that, bearing in mind the guidance given in the authorities to which I have referred, this is a case in which merely to make the declarations set out earlier in this judgment would not provide just satisfaction for all that these parents have had to live through as a result of the conduct of this local authority. I am satisfied that an award of damages is ‘necessary to afford just satisfaction’ to these parents.
  3. Quantum
  4. The final issue is to determine the appropriate quantum of damages. There is little guidance in the authorities on the approach to be taken when quantifying an award of damages under s.8(2). If one looks at the authorities for appropriate comparators, again there is relatively little assistance.

 

It is worth noting the underlined passages – these parents were successfully reunited with their child, and had lost the first year of that child’s life due to these mistakes.

 

The Court looked at such historical precedents as there were for human rights act breaches and financial recompense and agreed with the parents that their claim for £6,000 each was fair.   (I think that’s probably a bit light, having read the case, but can you really be compensated for something as priceless as time with your child?)

 

To finish up, there was a film which had a very memorable strap-line, used in the trailers and on the posters. It was so memorable that everyone knows it, though hardly any of you will be able to tell me which film it was from. Let me know if you know it, or think you do.  Googling or such is cheating – you either know it, or you don’t. I know that you can type.

 

The strapline, apposite here was

 

BE  AFRAID

 

 

BE VERY AFRAID

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About suesspiciousminds

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

31 responses

  1. I note this case began with the judgment that the parents had “concealed the pregnancy” and THEREFORE the child was at risk of harm. Although we do not know details of this case, our experience in many cases is that social workers’ knowledge of maternity care and the choices mothers make (as they are entitled to) is often abysmal, and above all, they seldom realise the depth of their ignorance,. Nor do truly concealed pregnancies necessarily lead to problems in quality of care of the baby, though mothers may need support
    Jean Robinson President Associsation for Improvements in the Maternity Services

  2. Does encouraging a learning disabled person to sign a retrospective section 20 count as misfeasance in public office?
    No sorry, I’m still so naive , I must get with the reality of this “industry”
    Also how on earth does £12,000 compensate for losing the first year of a child’s life and the local authority in this case firstly did not think damages should be paid then thought £ 1,000 to each parent would be suitable.
    I am sure people have received more compensation for tripping over a crack in the pavement.

  3. Can someone please help about how much a person can disclose about an ongoing case? Also if there has been a break in proceedings can the person talk about the previous case even if its relevant to the current. It does relate to this post . There has been a rather major injustice , that could do with a good airing

    • Dear Anon

      In essence, you can talk about the details of the case that are within a published judgment (as long as you don’t identify the child directly or indirectly). If the case has not had a published judgment, you are at risk of breaching s12 Administration of Justice Act by giving any details. You are PROBABLY allowed, if using a pseudonym that doesn’t identify you or the children to talk about how the EXPERIENCE was and how it made you feel, but not the details of the case.

      It is all a bit of a mess at the moment.

    • Publish and to hell with them! The whole rotten edifice only persists because people don’t shout out from the rooftops.

      Worst case scenario: you get jailed for a few days until you re-appear suitably penitent before the Court and recant your heresy 🙂

      • Some people have done six months for this in worst-case scenario, so my advice would be to go to see your lawyer and get advice about how far they think you can go in discussing the details. It probably won’t help that much if you end up in a committal hearing to say “people on the internet said it would be okay”

        [I don’t madly disagree with Michael’s principle of how the law OUGHT to be, but given that it isn’t, I’d rather that people didn’t get themselves hauled up before the Court]

      • Ashamedtobebritish

        It’s all about revolution Suess, it’s coming regardless – we didn’t get where we are today without it

  4. Ashamed to be British

    Real question on this …

    Does this mean that if the parents are compensated, they are automatically exonerated? Or at least it means the LA are proven guilty of misfeasance/misconduct in public office?

    If so, surely that would mean the parents have had their child wrongly removed so they must be returned or at least the case heard in a high court, with proper FOF and correct information put before the court?

    Maybe someone would be kind enough to educate me on this particularly area

    • I have had a good giggle .So it makes a difference to Human Rights infringements if the case is heard by a high court judge. That’s novel

      • Ashamed to be British

        The LA tend not to attempt to tell the high court they were wrong.

        However, I would like a response to my genuine questions, I need to know

    • Para. 82 – the daughter was returned to the care of the parents.

      • Ashamed to be British

        Thank you, I find it hard to read from a computer, but my main question is, are the parents exonerated and will charges be brought against the local authority? This has to be that breaking case we’ve waited for, accountability

    • Does this mean that if the parents are compensated, they are automatically exonerated?
      I assume that by ‘exonerated’ you are asking if it was found that the threshold was not crossed and that there was no risk of significant harm to the child? If so the answer is no. We can see that in practice because a supervision order was made.

      From a legal perspective, the requirement for causation to be proven is not applied so strictly in human rights litigation. There can be an award of damages for the fact that there has been a human rights violation without needing to prove that it has actually done some damage.

      In this particular case the parents did subsequently get their child home because they demonstrated they could care in a residential assessment, but that doesn’t mean that in every case involving inappropriate use of s20 the child would be returned as a matter of course.

      Or at least it means the LA are proven guilty of misfeasance/misconduct in public office?
      Again, no. Misconduct in public office is a common law offence and must be tried on indictment in the Crown Court. The test in law for compensation under the Human Rights Act is very different to the elements of the offence of misconduct in public office. I rather doubt that a social worker is a holder of ‘public office’ for the purposes of the offence and, in any event, the mental element of the offence requires intent or (subjective) recklessness. There is clear case law saying that error alone is not enough.

      Surely that would mean the parents have had their child wrongly removed so they must be returned…(?)
      Again, this doesn’t automatically follow although it appears to have (eventually) done so in this case. The LA could still have applied for an interim care order with a plan for interim removal and the fact that the child was under s20 in circumstances where s/he shouldn’t have been does not mean the child can’t be removed if the ‘safety demands immediate removal’ test is met.

      …or at least the case heard in a high court, with proper FOF and correct information put before the court?
      I suspect that most circuit and district judges would want an application for compensation under the HRA to be dealt with by (at least) a Deputy High Court Judge. And practically if you have one judge dealing with part of the case then they may as well deal with the other part of it. However there’s no requirement that it be dealt with by a judge in the High Court as the Family Court (apparently!) has jurisdiction to award damages.

      The case will then run its usual course (possible interim removal hearing, assessments, statements, care plans etc etc) and this will comprise the ‘correct information’. A finding of fact hearing is theoretically possible, however the usual guidance about finding of fact hearings only being ordered in single-issue cases would apply.

      • Aaarrgh, typesetting in HTML. So close, and yet so far…

      • Ashamed to be British

        Thanks for the clarification Jim, most appreciated.

        What a mess!

      • Ashamed to be British

        I do believe though, than social workers are public servants and are holders of public office, I am aware of several cases where they’ve been suspended under this and a few who are about to enter the court arena to face this charge

      • Extremely grateful to Jim for his very thorough and accurate answer.

      • The short answer is I’m no expert on criminal law so I certainly don’t know if there is a definitive answer on whether social workers are are in public office. I was initially sceptical but looking at the CPS guidance here on the offence and in my old Archbold I can at least hypothetically imagine a few circumstances that might meet the test if they involved bribery or a malicious use of social work involvement in furtherance of some other dispute.

        But for the offence to be prosecuted it would have to be deliberate conduct that is sufficient to amount to an abuse of the public trust. It goes far beyond behaviour that would be defined as misconduct for internal disciplinary procedures (or a decision to suspend an employee for misconduct). Bear in mind that it has to be tried on indictment in front of a jury, the CPS rules suggest the decision to prosecute would be taken by someone fairly senior in the organisation and prosecutions for this offence are unusual.

      • Ashamed to be British

        Maybe this will help a little

        Details of the offence are set out in November 2007 guidance from the Crown Prosecution Service (CPS):

        The elements of misconduct in public office are:

        a) A public officer acting as such.

        b) Wilfully neglects to perform his duty and/or wilfully misconducts himself.

        c) To such a degree as to amount to an abuse of the public’s trust in the office holder.

        d) Without reasonable excuse or justification.

      • I suspect that the hard bit there is “wilfully” – which will be the mens rea element (or intent)

        This is what the CPS guidance says about that

        In Attorney General’s Reference No 3 of 2003 the court approved the definition of ‘wilful’ as ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.

        In R v G [2003] UK HL 50 Lord Bingham said with respect to inadvertence:
        It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.

        Lord Steyn added:
        the stronger the objective indications of risk, the more difficult it will be for defendants to repel the conclusion that they must have known. (R v G [2003] UK HL 50)

        Giving the defence of ignorance or stupidity or mistake, and of course it is for the prosecution to prove that they must have known that they were deliberately neglecting their duty or misconducting themselves. Tricky to prove to criminal standard.

      • Again, from the CPS guidance on “public officer” for the offence – it’s a really long section, but this bit seems to be sufficient to capture a social worker (or indeed Local Authority lawyer)

        In R v Whitaker (1914) KB 1283 the court said:

        ‘A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.’

        There’s a long list of the sorts of people who have been captured, and social worker isn’t on it, but it doesn’t seem wildly out of character. The guidance talks about people who are carrying out public functions for private companies probably NOT being a public officer (i.e if a Council pays Smudge Inc to carry out their cleaning, a cleaner working for Smudge Inc isn’t a public officer)

        In lawyerly conclusion (freudian slip in first version I typed ‘confusion’ there) – a social worker probably is a public officer, but might not be.

  5. As a reference point, £1,500 – £2,000 is the going rate for an RTA whiplash injury causing temporary physical discomfort.

    Surely most right-minded people would consider an award of £6,000 for the loss of the first 12 months of their child’s life, let alone the psychological harm/emotional distress, to be wholly inadequate. The psychological effects of the emotional harm to the child and repeated disruption of her attachments are likely to be life-long. Leaving aside the impossibility of valuing priceless lost experiences and opportunities, what disincentive to future Local Authority incompetence (and, as mentioned above, misfeasance) is such a paltry award/fine?

    • I think what the President said when he was HHJ Munby needs reiterating
      15. The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step: either an emergency protection order in accordance with section 44 of the Children Act 1989 or an interim care order in accordance with section 38 of the Act or perhaps, in an exceptional case (and subject to section 100 of the Act), a wardship order made by a judge of the Family Division of the High Court.

      16. Section 46 of the Children Act 1989 permits a police constable to remove a child where he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm, and that power can be exercised without prior judicial authority. But the powers conferred on the police by section 46 are not given to either local authorities or social workers.

      17. Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.

      18. As I said during the course of the hearing, no baby, no child, can be removed simply “as the result of a decision taken by officials in some room.”

      19. This is all elementary. It is well known to all family lawyers. And it is, or ought to be, well known to all social workers. That is why, as the media accurately reported, I made the comment during the course of the hearing that “The professionals involved in this case should have known better.” I went on to point out, however, that the midwives and doctors in a delivery room in the small hours could not have been expected to understand this. No doubt they acted as they did in accordance with the ‘Birth Plan’ that had been given to them by their superiors..

      Except I would add to it and say it does not appear to filtered down to some lawyers, judges or be adhered to by a rather large number of local authorities 6 years later. The case is EWHC 152(Admin) 2008.

    • I was thinking about this, and I wonder in part whether the thinking was that a higher amount of compensation would have taken the parents out of benefits (due to their capital being higher than the caps set by Government) and would be counter-intuitive to end up making them worse off by compensating them. The fact that this was the bench set by those representing the parents suggests that some care was taken in fixing the amount they were seeking.

  6. The difference is that most whiplash claims are bogus and only paid because it is not economic to fight them. We all pay through our premiums.

    Come on, what’s the film?

    • The film is The Fly – it does show that whilst advertising is powerful, it can easily miss the mark (most people know the film and know the tagline, but don’t put the two together)

    • The benchmark authority on the value of personal injury compensation, Kemp & Kemp’s Quantum of Damages, only reports litigated claims.

  7. One of the other cases Venema V Netherlands demonstrates that not only are children removed without parents consent or a court order but that a court at highest level can fail to recognise this. Can someone kindly answer whether this case is misfeasance or misconduct in public office as several people have asked?

  8. Completely off subject but funny in the happy zany world of the Misery of Injustice. I went on the legal aid checker earlier it say yes!!! https://www.gov.uk/check-legal-aid Left my phone number and ticked the convenient time to call still waiting hour and half later.

    Is this real, I have never taken illegal drugs but is this what they call a bad trip?

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