Removal of a child subject to a Care Order from a parent – if you are a parent, or parent’s lawyer this case gives information and advice about how you might stop that, and if you are a social worker or Local Authority lawyer this case tells you that it is FAR LESS simple than you might imagine, and you’d better be ready to show your working.
The High Court in 2014 in Re DE 2014 told everyone that their previous thinking that under a Care Order a Local Authority had the power and authority to remove a child if they wished and the remedy of the parents would be to apply to discharge the Care Order if they disagreed was WRONG.
A Care Order gives the Local Authority the legal POWER to remove a child without a further Court hearing. The case law says rather differently though – that just because you have that POWER doesn’t mean you are free to exercise it as you see fit. There are hoops to jump through.
And that effectively, unless a situation arose that was the equivalent of a situation that would allow a Court to make an Interim Care Order (the child’s safety requires IMMEDIATE SEPARATION) then there was instead a long and careful process to go through before the Local Authority could trigger a removal under a Care Order.
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)  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.
The Court of Appeal have just considered, for the first time, a scenario post Re DE 2014 where a Local Authority removed under a Care Order, saying that it was an emergency, a situation akin to an ICO triggering event.
The parents disputed this, and an application to discharge the Care Order (and somewhat oddly an inherent jurisdiction application) was lodged. The Court at first instance decided that the LA were entitled to remove in the interim and arguments and decisions about whether that would be permanent would have to wait for the final hearing of the application to discharge
The parents appealed
Re K (A child) 2018
I think there are three points of interest in this case
- The emergency/non-emergency point, and how hard the LA has to work to show their full consideration of interim removal under a Care Order
- Whether the inherent jurisdiction is the right route (hint, no)
- And finally, the position where a Local Authority had, and declined, the opportunity to cross-examine father about allegations against him and a Judge went on to in effect make findings against the father.
I’ll deal with those in reverse order.
Failure to cross-examine father
44.The judge made findings against the mother to the effect that she was in breach of the written agreement. In particular, the judge accepted (as he was entitled to do) the evidence of PC Tonse, that the mother had told her she had been the victim of two previous assaults at the hands of the father. That she had said this was denied by the mother, who gave evidence and was cross-examined.
45.At the hearing, counsel (Mr Richardson for the father) offered to call the father in order for him to be cross-examined about the events of 30 December and, no doubt, in relation to the two earlier alleged incidents. No party required him to be called.
46.Having heard and seen both the mother and PC Tonse give oral evidence, in my judgement, the judge was undoubtedly entitled to conclude that the mother was not being honest and to accept the police officer’s account of what the mother had said to her in the flat in the early hours of the morning. The judge, however, went on (without having heard evidence from the father) to conclude at paragraph 13:
“So we have three assaults in three weeks. [The mother] is, unfortunately for her, telling the truth when she said that the police officer and therefore 30 December is not an isolated incident in the relationship between her and [the father]… So there was that; there was direct contact on at least, to my mind, three known occasions during which [the mother] was assaulted.”
47.And At 23:
“I have already found that there has been at least three incidents when he has assaulted her. There may have been, and I do not know, other occasions when he has come to the property.”
The Court of Appeal decided
71.The judge necessarily had to make findings as to what occurred on the night of 30 December. He found that the mother had seen and been assaulted by the father on three separate occasions. It follows from that finding, that the mother had not told either the police or the local authority about the two earlier occasions of violence. The judge further found that the mother’s written and oral evidence to the court was untrue and the product of her realisation of the consequences of her account of the events given by her that evening to the police.
72.In order for the judge to reach these damning findings of fact, he was required to consider all the available evidence. In my judgment, a serious error was made by the local authority in failing to cross-examine the father. It is not enough, metaphorically, to shrug the shoulders and say: “He would say that wouldn’t he?” of the father’s statement in support of the mother’s account. The father’s evidence was directly relevant. More serious still is that the judge made specific findings of assault against the father, a man who was both a party and a witness, without hearing his evidence, in circumstances when he was available and willing to give evidence and to be cross-examined. In my judgment, this was clearly unfair and a serious procedural irregularity.
73.Almost by a side wind, there is now a finding of fact that this father assaulted the mother on three separate occasions, all within a matter of weeks of each other, when a non-molestation injunction was in place, and at a time when his wife was being given (on the local authority’s case) one last chance to bring up their child. It is rightly difficult for a party to go behind a finding of fact made against them by a judge after a trial where a party has been represented. But as a consequence of the findings, all future assessments of this father, and any decisions made in respect of either K (and indeed any child this father may have in the future) will have these serious findings as their starting point. Mr Richardson submitted that, in some way, the findings carried less weight because this was an interim hearing and could be, therefore, reviewed at a final hearing; I am afraid I cannot accept that to be the case.
74.Having read and reread the judgment, it is abundantly clear that this judge was making positive findings that this father had assaulted the mother on three separate occasions, and indeed all the evidence available makes it absolutely clear that, from 7 March onwards, the local authority has proceeded on precisely that basis. These findings were made, without the father having an opportunity to give evidence in circumstances where he was present in court and willing to go into the witness box and expose himself to cross examination.
(Being old-school, I always operate on the basis that if you are offered the opportunity to cross-examine a witness and decline to do so, you are accepting the account they give. You can’t call someone a liar in submissions if you didn’t have the decency to call them a liar to their face and give them the opportunity to deny it)
The inherent jurisdiction
33.As already recorded, K was the subject of the full care order. In those circumstances, the court was bound by the jurisdictional principles which relate to care orders and care planning. That means that the inherent jurisdiction cannot be used as a means of diluting, or circumnavigating, a local authority’s right to exercise parental responsibility following the making of a care order under section 33 and subject to section 34(4) of the Children Act 1989.
34.That this is the case could not have been stated more clearly than was done by Lord Nicholls of Birkenhead in Re: S (Minors) Care Order Implementation of Care Planning; Re: W (Minors) Care Order Adequacy of Care Planning  UKHL 10;  2 AC 291;  1 FLR 815 at 23:
“While a care order is in force the court’s powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1).”
35.Also, more recently in Re: W (Care Proceedings Functions of Court and Local Authority)  EWCA Civ 1237;  2 FLR 431 Ryder LJ said:
“71. It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued.”
36.Whilst the court has jurisdiction under its inherent jurisdiction to prevent the removal of a child (subject to a care order), the House of Lords made it clear in Re: S that an injunction under the Human Rights Act 1998 (HRA 998) can be utilised in order to achieve a similar outcome.
(I think there’s a missing ‘no’ between has and jurisdiction in para 36….)
37.From paragraph 22 onwards of Re: DE, Baker J traced the jurisdictional route to an application for an injunction under HRA 1998. Baker J noted that other potential remedies (for example, judicial review) do not ordinarily provide adequate protection for a family when a local authority is planning to remove a child, and that, as a consequence, the appropriate route will be for an application to be made under section 7 of the HRA1998.
Now, the emergency issue
When the Judge made a Care Order, placing K at home with the mother, the Judge said this
9.The judge concluded at 73:
“For all those reasons, I consider that the welfare of [K] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [K], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son.”
This raising three issues of significance – being abstinent from alcohol, the parents staying away from each other, and the mother being honest with professionals.
What happened was that the child, K, became unwell and was admitted to hospital. The father became aware of it and went to mother’s home at about 2.00am on 30th December. There was an allegation of an altercation and a claim that father assaulted mother, knocking her unconscious. The police attended and took a statement. The mother told the officer that she had consumed three beers.
20.During the course of all this, and whilst still at the mother’s house (according to PC Tonse’s notes), the mother told her that the father had assaulted her 2 weeks previously and then again a week later, on which occasion he had punched her nose causing it to bleed. These two instances had not been reported to the police. The mother, as recorded by PC Tonse, had said “that she would not have called for the police tonight had it not been for her son, who she felt was at risk due to the father’s aggressive behaviour.” The officer’s focus, not unreasonably given the view of the paramedics, was on the assault. The mother’s focus, also not unreasonably, was on her baby. Eventually, it was agreed that the mother and K would go by ambulance to hospital.
21.When K was examined in hospital he was diagnosed as suffering from meningitis. He was admitted and remained in hospital for 10 days. The mother stayed with him day and night for the whole period of his stay in hospital.
22.A note of the doctor is recorded in the judge’s judgment:
“Talked to mother. Had two beers last night. First time for a long time. Father came to her house as worried about son. Mother said she asked him to leave but he hit her and she called the police.”
23.On 2 January 2018, the local authority was informed (by what means is unclear) that the mother and K were in hospital. The mother that same day was handed a letter entitled “Notice of intention to remove [K] from your care on or after 5 January 2018”. The letter referred to District Judge Alderson’s judgment (referred to above) and the written agreement, before going on to say:
“Due to the significant risk posed to [K] by you not being abstinent from alcohol and from other domestic violence perpetrated on you by [the father] and any contact between [the father] and you, in relation to your failure to inform the Local Authority or the police of at least two occasions in December 2017 when you subsequently alleged to the police on 30th December 2017 that you had been subjected to domestic violence from [the father], the Local Authority has determined that it is necessary to remove [K] from your care to foster care and that there is no other means of safeguarding him.”
24.According to a statement, filed upon the direction of this court on 7 June 2018, the local authority say that they first became aware that K had been admitted to the Whittington Hospital on 2 January. At about 13.30 that day, the mother was spoken to by the duty social worker, and was told at the hospital that same afternoon that K would be taken into foster care upon his discharge.
Without labouring the point, the triggering incident happened on 30th December (the day before New Years Eve) and the Local Authority found out about it on 2nd January, the next working day, and issued notice that they would be taking K into foster care when he was medically fit for discharge from hospital.
The LA took the view that they had learned of the mother drinking alcohol, of father coming to the home and assaulting mother perhaps on three occasions, and of a lack of honesty in mother telling them about the earlier incidents, and given what had been said by the Judge, considered that this was an immediate safety risk (if the child were to go back to mum after discharge from hospital)
The parents argued otherwise.
40.The local authority and the child’s guardian each submit that the appeal should be dismissed. The local authority submits that the issue at the hearing was to decide whether K’s welfare demanded “immediate separation”. They submit that, given their view that instant removal was required, the guidelines contained in Re: DE had not been engaged. For example, whilst they submitted that the 10 days’ notice period provided for in the written agreement had not been complied with, that was acceptable given that the local authority considered the case to be an emergency.
At the hearing to consider whether the child should be returned to mother in the interim (in effect whether the LA were wrong to have removed in the interim)
48.The judge concluded that K was at serious and immediate risk of harm as, he said, nothing could be put in place which would protect him from his father’s behaviour. At the request of counsel for the father, the judge went on, in the briefest of terms, to consider the welfare checklist. In relation to any change in circumstances, the judge noted that this was “a big change in the circumstances for [K]” but that it was a “proportionate approach”.
49.With respect to the judge, in my judgment, such a bland recording, insufficiently reflected the reality of what was happening to K. K had never been apart from his mother. All those involved throughout his life to date accepted unreservedly that the mother’s care of K was excellent, as was their attachment. At no stage had the local authority sought to limit the mother’s care of K whilst he was in hospital, which was at all times wholly unsupervised. Nowhere, in either the judgment or the local authority material, have I seen any indication of anyone considering the effect on this baby of removal from the care of his mother. K had been dangerously ill and was only starting to convalesce and to recover; then was discharged, not home to his mother and all his familiar surroundings, but to a strange place with only strangers around him. I say this to highlight why the protocol set out in Re: DE exists and should be applied in all cases.
50.In giving permission in this case, I directed the local authority to provide a statement setting out the manner in which they complied with the Re: DE protocol and, in particular, to provide full details of the involvement of the applicant in the decision-making process, and the details of the process by which the local authority – to use the words of Baker J in Re: DE – “rigorously analysed all the realistic options; considering the arguments for and against each option” prior to removing K from care of his mother. The local authority was further directed to exhibit all minutes and written recordings in relation to the decision not to return K upon his discharge from hospital, including the written records required under the Re: DE protocol.
51.The statement supplied by the local authority in response to that direction makes no mention of the case of Re: DE at all. It does not exhibit any minutes or written recordings in relation to its decision to remove; it does not explain how the mother was consulted, save to detail (by way of chronology) how the previously made decision was conveyed to her at hospital by the duty social worker.
52.Mr Parker, who has only recently been instructed on behalf of the local authority, acknowledged this to be the case and apologised to the court. The local authority could offer no explanation for the failure to follow the Re DE protocol other than to say that the local authority regarded the case as an emergency. Further, the local authority suggests that in granting permission to appeal and referencing “what is likely to be permanent removal” in respect of K, demonstrated an incorrect approach and incorrect analysis of the judgment on my part. The hearing was, they submitted, focused solely on K’s safety which required immediate removal, and the long-term plan was a matter for the application to discharge the care order. The local authority submit that it would have been premature for them to have engaged in any sort of Re: BS analysis as required by Re: DE, or indeed to “rigorously consider other options”. That, they say, could be done later.
53.I do not accept that to be the case. I would have found such a submission more convincing if it had not been patently clear from the papers that, from as early as 2nd January, the local authority had no intention of rehabilitating K to his mother once he had been removed.
54.The position as recorded on the order and confirmed orally to the judge at the hearing was that, far from consideration being given to K returning to the care of his mother, the local authority was forthwith considering placing him with a family member in Australia. This was confirmed only two weeks later in the care plan dated 21 March 2018. In addition, it is absolutely clear, by reference to the fact that the decision to remove K from his mother’s care was made the very day the local authority was informed of the crisis, that no consideration was given as to whether anything could be done to salvage the situation rather than the knee-jerk reaction of immediate removal.
55.During the course of the trial, those representing the mother sought to call and adduce evidence in respect of the quality of her care of K on a day-to-day basis, and particularly in relation to her exemplary care of him whilst he was in hospital.
56.The judge declined to hear any evidence to this effect. The judge said he was working on the assumption that the mother was able, in principle, to “look after the child”. It is because, he said:
“She allegedly had failed to keep to the written agreement and that she has put the child at risk. That is the issue. It is simple as that. It is a very easy, very short and very small issue.”
57.I do not agree.
The thrust is this – even if the LA assert that the circumstances are such that it is an emergency interim care order style scenario, they need to be able to evidence their decision-making process as to why this is the case, what steps they considered to manage the risk in another way, what efforts they made to communicate with the parents and if not, why not. They had to avoid a knee-jerk decision, and they had to avoid making a final decision that having removed in the interim, that was that. (It was rather brave to claim that they hadn’t made any final decisions when it was said at the initial hearing that their plan was to consider placing the child with relatives in Australia…)
63.In my judgment, the absence of the availability of the guidance in Re: DE resulted in the judge having too narrow a focus and led to him failing properly to consider the wider issues. I note from Mr Richardson’s position statement at first instance that, without referring to Re: DE specifically, he urged the court to consider all possible options, an invitation declined by the court.
64.I am conscious of the submission made by both the local authority and the guardian that the court will approach “slow burn” or “gradual deterioration” cases somewhat differently from crisis cases. That is undoubtedly right. But that does not mean, where a child has been living successfully at home under a care order, that following a crisis that child can be unilaterally removed by the local authority without any of the protective processes enumerated in Re: DE having been carried out.
65.In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.
66.One of the things that went wrong in the present case was the delay in the matter coming to court – some 7 weeks. In my judgment, applications such as the present, properly brought under the HRA 1998, should be brought before the court with the same speed and urgency as an initial application for an interim care order where removal of a child is sought. Each application involves the proposed removal of a child from his or her home and (it is accepted by the local authority) the test for immediate removal is the same in both cases, namely: “does the child’s safety demand immediate separation?”
67.All attempts should be made to adhere to this, although I fear this may be a counsel of perfection given that a parent’s only route to court (once a full care order is made) is via an application to discharge that care order, coupled with an application under the HRA1998. Unlike care proceedings, there is no automatic right to legal aid in discharge proceedings and inevitably there is, therefore, a delay as the application for legal aid for the parents is processed. It is to the immense credit of the mother’s solicitor that he managed to obtain legal aid for her application at the speed he did.
68.Further, when making a removal order in respect of a very young child and where it is inevitable that the final hearing will not take place for several months, the court must balance the effect of long-term removal of the child from its parents with the risk of short-term harm if he or she remains with him: Re: M (Interim care order removal)  1 FLR 1043.
The appeal was granted and the case sent for re-hearing. That does, of course mean that K has been separated from his mother since 2nd January and a decision still has not actually been reached about interim removal.
(I think… I couldn’t find any reference in the judgment to the child having been returned, just that the application for discharge is still proceeding and that there’s a directions hearing coming up about it. It does seem that if you’ve appealed the judicial endorsement of interim removal successfully, the child ought to be at home whilst that discharge hearing takes place, but I can’t see from the judgment whether that’s what actually happened)