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Law for social workers (part 2)

Ah admit it, you skipped straight here, didn’t you?  In which case, you missed a lot of cool stuff about lizards, that’s for sure.

 

In this part, I’ll tell you the key tests and principles from the Acts and case law, for each sort of order.  I will keep this up to date if the law changes, and it will be up on the front page on a tab.

 

Let’s start with the thing that is changing more dramatically than anything else at the moment, and it ISN’T an order.

 

Section 20 accommodation

 

Section 20 is the voluntary agreement of a parent for the child to come into foster care.  For almost 22 years of the Children Act 1989 it was completely ignored by the Court and barely got a mention. Then all hell broke loose.

It started with a decision by Mr Justice Hedley, where a mother was asked to agree section 20 consent immediately after a C-section. She also had learning difficulties and was basically scared into signing it by threats that if she didn’t, the social worker would go to Court and get an EPO.

From that case, which you can read about here,

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

the following principles were derived.  These are REALLY important for all social workers to know. I would seriously recommend having them on a piece of paper that you have on your person when doing any visit – because if the issue of section 20 comes up, it is on YOUR shoulders to evidence that you knew about all of this and took it all into account – the records are going to need to show all of it.

 

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.

 

At the moment, Human Rights Act damages are being paid out by Councils not just for misuse of section 20 to get a child INTO care, but delaying too long in making decisions about a child’s future once they are IN care – an issue called section 20 drift.

 

The law has developed still further, with the Court of Appeal in Re N suggesting that section 20 agreements should always be in writing and that it is not sufficient for a Local Authority to rely on an absence of objection.  Also that if a parent withdraws their consent, the LA have to either get an immediate Court order (very very hard at present due to Court access) or return the child. I’d suggest that Re N is a major factor in the volume of care proceedings going up 20% this year, and it is going to keep going up.

Re N is here http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html  (don’t read it, because 98% of it is unintelligible stuff about international law, but if you MUST, skip straight to para 157

 

Be REALLY aware that going to a maternity ward to ask for s20 consent with a police officer there as back up is liable to make the s20 consent invalid as made under duress

  1. 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.”

 

And that leads us nicely into

 

Police Protection

 

 

First things first-  EVERYONE calls these PPOs  (because they sort of sit beside Emergency Protection Orders EPOs) but there’s no O. There is no Order. This is the police exercising their power to remove a child

http://www.legislation.gov.uk/ukpga/1989/41/section/46

 

46 Removal and accommodation of children by police in cases of emergency.

(1)Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may—

(a)remove the child to suitable accommodation and keep him there; or

(b)take such steps as are reasonable to ensure that the child’s removal from any hospital, or other place, in which he is then being accommodated is prevented.

 

And you can see from the statute that the test for this is pretty low. It is an administrative decision taken by a police officer at the time, on the scene.  There’s no filing of evidence, no legal argument, no representation of a parent, no voice of the child, and no Judge weighing things up

It is for that reason that the Court’s don’t like them and have made it clear that “Wherever possible, a decision to remove a child from a parent should be made by a Court not as an administrative decision”.   Police Protection should be reserved for situations where the risk can’t even be managed long enough to go to Court and seek an EPO. That’s a LOT rarer than their actual use.

Be warned, if a Court scrutinises use of Police Protection and thinks that the LA were involved and used it as a short cut or an easy way to get the child into foster care without having to go to Court, damages can and will be made.

 

https://suesspiciousminds.com/2014/05/01/misuse-of-police-protection-human-rights-claim/

“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.”

 

The lead case is Langley v Liverpool 2005, so these issues are not exactly new.  The Home Office Guidance above makes it really clear that s46 is an emergency power only, not to be used if the Court can make a decision instead.

 

Emergency Protection Order

 

The bare statute just says this:-

44 Orders for emergency protection of children.

(1)Where any person (“the applicant”) applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)there is reasonable cause to believe that the child is likely to suffer significant harm if—

(i)he is not removed to accommodation provided by or on behalf of the applicant; or

(ii)he does not remain in the place in which he is then being accommodated;

 

[It is quite often overlooked that actually ANY person can apply for an EPO – unlike care orders, where only the LA or NSPCC can apply. In 25 years, I’ve only seen a parent apply once for an EPO, but it can happen]

The Courts set a much higher test for EPOs than the Act does.

The lead case is Re X and B Council 2004

 

http://www.bailii.org/ew/cases/EWHC/Fam/2004/2015.html

There are 14 points in there which the High Court say MUST be drawn to the attention of a Court considering an EPO application – the case law has to be produced and the Court referred to these 14 points when making the application.

Critically for social workers

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”.

 

If your statement or evidence in relation to an EPO does not ‘actually establish’  ‘imminent danger’ then you can’t have your order.

and

 

The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.

 

It is probably the HARDEST order to obtain, and many would argue rightly so. The test set down by the High Court in re X and B, compared to what the Act says is the difference between a limbo bar and a pole vault.

 

Removal under an Interim Care Order

 

Again, the bare statute doesn’t say much

 

38 Interim orders.

(1)Where—

(a)in any proceedings on an application for a care order or supervision order, the proceedings are adjourned; or

(b)the court gives a direction under section 37(1),

the court may make an interim care order or an interim supervision order with respect to the child concerned.

(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

 

The Courts though have set a higher test for removal under an Interim Care Order, and THAT is the test that social workers must address in their written and oral evidence

 

 

“that separation is only to be ordered if the child’s safety demands immediate separation.”

It may do no harm to invite particular attention to Wall LJ’s definition of “safety” in this passage in Re B and KB. The concept of a child’s safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court’s decision as to whether to grant an interim care order is the child’s welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view “KB’s welfare did demand her immediate removal from her parents’ care”.

 

Re GR and Others (Children) 2010

http://www.bailii.org/ew/cases/EWCA/Civ/2010/871.html

 

I was going to squeeze adoption into this part, but it has already been pretty long, and my Chinese food has arrived, so I’ll clean up adoption over the weekend.

 

I hope this has been useful, feel free to pass it on, email it around, print it out and stick it on notice boards.

If this is your first encounter with Suesspicious Minds – normally there is more sarcasm and 80s pop culture, and weird cases that might make you wince or cry or laugh, so pop in again.

 

If you enjoyed the piece, or the blog, please visit the website about my book, and if it takes your fancy, pre-order it.  I’m 85% of the way to getting it published now, thanks to loads of support and help from very cool people. Be like Fonzie and be cool too.

 

https://unbound.com/books/in-secure

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The Latvian case – the judgment is up

 

 

This is a follow-up from Monday’s piece, about the latest Christopher Booker outrage.

https://suesspiciousminds.com/2015/11/30/police-ignore-judges-order-to-help-latvian-family-escape-social-workers/

 

 

You may remember that from Mr Booker’s account, the child had a small mark on his neck and another small mark, which led to social workers trying to snatch all of the children, and the parents instead fled with the help of Forced Adoption to another country.

 

You may also remember how incandescent Mr Booker was that the Local Authority couldn’t be named because of a gagging order.

Eleven days ago, the second oldest child of Russian-Latvian parents working in a town I cannot name for legal reasons was seen by a teacher to have a small mark on his neck. When the school reported this to social services, an examination revealed another slight mark on his leg. The family found itself plunged into an inexplicable nightmare

In this latest case of the family that got away (but which Judge Duggan does not allow us to name), the conduct of the Irish and Latvian police seems yet further evidence of just how little confidence foreign authorities now have in the fairness and legality of Britain’s increasingly notorious system of “child protection”.

 

The judgment is now up.  Is it an “inexplicable nightmare”?   Does child protection in Booker’s sub-headline need his air-quotes around it to show that it was no such thing?

 

 

 

Blackburn with Darwen Borough Council and Flight to Latvia 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B189.html

 

The eagle-eyed reader may spot that the name of the Local Authority is in the name of the case, rather than being prevented from being known because of a gagging order. There is no gagging order. The usual restrictions on naming the children apply.  [“Ah,” Booker defenders are saying already, “that’s only because Booker called them out on it, so they had to back down.”]

 

  1. The written evidence available to me indicates that on 12th November 2015 D was seen at school with a burn mark on his neck and another mark on his thigh. The appearance suggested injury with a rope. He said his father was responsible for the neck, an injury inflicted, he said, with a belt. He said his mother was responsible for the injury to the thigh. N was examined and was found to have bruising to the cheek for which he does not appear to have provided an explanation.
  2. The parents have been seen. The father says that the injury to the neck was caused by him in unclear accidental circumstances which I am afraid need more explanation. The mother said that the injury to N’s cheek arose from an incident in school but on investigation the only relevant incident at school concerned the oldest child. The parents agreed with Police and local authority that while investigations took place, the children’s safety would be ensured by their temporary residence with the grandparents. This was implemented but on 19th November 2015 the children did not turn up for school and enquiries revealed that the parents had removed the children from the grandparents the previous evening and left the district. It is a concern that the grandparents, who have been entrusted with responsibility for the safety of the children, did not see fit to draw this development to the attention of the local authority.

 

 

Now, let me be clear. We have here marks to a child’s neck. The child says that the father hit him with a belt. The father says there was some sort of accident, the mother says it happened at school. Three competing accounts. The parents did not attend Court to give their accounts, or ask their lawyers (who would have not have cost them a penny) to cross-examine witnesses and to refute the claims. It might well be that if all of the evidence had been tested, that the Court would have decided that there was no deliberate injury to the child.  So this judgment is not PROOF that the father hit the child with a belt – but it does meet the test to be considered by the law – were there reasonable grounds to believe that the father had hit the child?   Given that father and mother chose not to come to Court to tell the Court the truth, the Court would be left with little choice but to consider there were reasonable grounds to believe that the child had been harmed.

 

The social workers had not believed the parents accounts and had believed the child. They had made arrangements to keep the children safe within the family whilst investigations took place. Those arrangements were breached. The social workers went to the Court, to say “We think the children aren’t safe and we would like an order to protect them”.

The parents were able to come to Court with free lawyers to give their account and to say that the children would be safe, and an independent Judge would hear both sides of the case and make a decision – that decision being on the principles that :-

 

(a) It is for the Local Authority to prove harm, not for the parents to prove their innocence

(b) Even if the child had been harmed, the Court would still look at what measures short of removal could keep the child safe

(c) An order for removal would only be made if it was necessary to keep the child safe, and would only be whilst assessments were carried out over a period of time to see if the parents could make changes.

 

I would like to ask Mr Booker what actions he thinks social workers ought to take instead of this if they are told by a child that his father hit him round the neck with a belt?  Because it seems to me that the alternative is to do what Mr Booker did, and assume that the parents did not do it.  And I’m fairly sure that if they got that wrong and the child suffered further injuries, the Daily Telegraph would not be leaping to their defence.  I’m fairly sure that the Daily Telegraph wouldn’t be putting air quotes around child protection then – they’d be saying, and rightly so, “This child told you that his dad hit him round the neck with a belt and you did NOTHING to keep him safe. Your job was to protect that child, and you didn’t do it”

 

If a social worker thinks that a child has been deliberately injured and can’t keep the child safe whilst investigations take place, putting the matter before the Court is the safe and fair thing to do. It is not an ‘inexplicable nightmare’

The alternative is that people just take a guess as to what happened to the child. Maybe the child made it up, in which case the family are safe and happy in Latvia. Maybe the child really was hit by his father, in which case it isn’t great that the parents were helped to leave the country with the children.

 

Which is it?

I don’t know. And you don’t know. And Ian from Forced Adoption doesn’t know. And Christopher Booker doesn’t know.

I’d suggest that perhaps given that none of us know, and that the risk of guessing and getting it wrong is big either way, that the best way to make that decision is for an independent Judge to do it, having heard evidence from both sides, not just one.

 

Do Judges get it right all the time? No, sadly.  I write about these cases all the time. And social workers don’t get it right all the time either. And nor do doctors, or teachers, or anyone.  It might well be that this child made it up and is quite safe with mum and dad. We just don’t KNOW.

 

But you see the difference between a Judge deciding, and Christopher Booker deciding what happened, is that (a) The Judge hears BOTH sides (b) The Judge hasn’t made their mind up who to believe before you even start and (c) If the Judge gets it wrong, the decision can be appealed and put right.  What’s the appeal process for Christopher Booker deciding that this child is safe with mum and dad?   And if we have Christopher Booker deciding what’s going to happen in these cases, what stops Katie Hopkins doing it?

 

 

Syria, children and electronic tagging

 

In what has been a challenging month, I have to confess that my heart sank right into my boots when I saw  Sir James Munby, President of the Family Division, had published a judgment about Emergency Protection Orders.  I’m still recovering from Re X, his last major contribution to this legal domain, and that was nine years ago.

 

But Re X (children) and Y (children) (Emergency Protection Orders) 2015   http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html

[Weird, the link doesn’t seem to be working. Try again

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2265.html      ]

 

is not actually about expanding the fourteen point guidance into a two-hundred and nine point guidance, so you can read on without fear or dread.

 

Note, I am lying. This is a judgment from the President. Have you ever seen a judgment from the President that made a Local Authority lawyer happy?  If I wrote the Top Ten list of case-law that had made my job harder, the President’s fingerprints would be on seven of them – going right back to seven days a week contact.  This does not buck that particular trend.

 

It is one of the cases where a family are accused/suspected/found  (delete as relevant to the particular case) of trying to take their children out to Syria to join up with ISIS (or whatever David Cameron thinks that we should call them this week), and what the State can do about it.

 

At the moment, this responsibility rests on the shoulders of Social Services and the Children Act 1989, and Parliament is more than welcome to produce some proper legislation that takes that off us and gives it to someone else, any time now.

 

A lot of this case is very factual about the circumstances, and I daresay that it will be very helpful to all the LA’s who are making applications to Court about such families.

 

[I have always wondered where the families go after that EPO. If a Court has ruled that you intended to take your child into a warzone and join up with terrorists and removes the child, what sort of assessment gets you the child BACK at the end of the final hearing? Aren’t the EPOs basically determinative of final outcome?  Well, that was the thrust of this case, whether there was some sort of arrangement that would allow the children to be back in the parents care with some form of cast-iron guarantee that they would not leave the jurisdiction. The important thing to remember here is that the Court had not conducted a finding of fact hearing about the parents intentions and plans and thus what risk the children were at – they had just determined that there were REASONABLE grounds to believe that the children were at risk of significant harm requiring interim protections]

 

However, the President would not be the President if he didn’t try to stretch the law a bit, and so that’s the point of interest.    [Occasionally, the President’s approach to the law reminds me of the year at school where all of us were given a brand new white plastic ruler to replace the wooden ones – the rulers were each labelled “Helix – Shatterproof” , an ill-thought out boast, which led to all of us industriously breaking them that very morning to demonstrate that they were not in fact Shatterproof.   I say ill-thought out, but of course, the school had to get on to Helix and order another 250 that same day, so for Helix it was a profitable claim]

 

Thinking about the cases over the intervening weekend, it occurred to me to think about the possibility of electronic tagging. Accordingly, on 5 July 2015 I sent the following email:

“I am sending this email to the advocates in both … cases. Please make sure that it is communicated as soon as possible to all concerned.

It has occurred to me to wonder whether in these cases it may be appropriate to consider the making of electronic tagging orders: see Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, and Re A (Family Proceedings: Electronic Tagging) [2009] EWHC 710 (Fam), [2009] 2 FLR 891 (setting out a form of order).

Could counsel please consider this possibility.”

This time there are precedents (though fairly obscure ones, which I had to go and read). They relate of course to the powers under the Child Custody and Abduction Act 1985.  Those powers aren’t exactly delineated to require someone to submit to electronic tagging, but in the modern era of law as they don’t say that they DON’T give that power, it could be interpreted thus

5 Interim powers.

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

 

Of course here, though, there is not an application before the Court under the Convention. These are EPO applications, governed by the Children Act 1989.   It is beyond my working knowledge to consider whether an attempt by the persons who hold PR (when there are no Children Act 1989 orders) could find themselves foul of the Child Custody and Abduction Act 1985   (if everyone with PR agrees that the children will go to Syria, who are the children being abducted FROM?).   It would be different if the Court had made Children Act 1989 orders, or were seised with such an application, since there’s authority to say that the Court can go on to make orders compelling the children’s return to the jurisdiction.

 

Anyway, let’s see what the President does with the idea of electronic tagging.

 

It is worth noting that the parents were keen on the idea – because it was obviously their best shot of having the children returned to their care  – this being a case where the Court had not found any evidence that the children had been exposed to radicalisation.   So the Court did not have to consider whether there was power to impose it on the family.   (Mr Rowley and Miss Woodward were counsel representing the parents)

 

  1. Mr Rowley and Miss Woodward take as their starting point the fact that, the precipitating events apart, the parents are, in other respects, good parents who are bringing up their children lovingly and well. Although it would seem that all the children are doing as well as might be expected in foster care, there is no doubt that they are missing their parents very much and that they are, in consequence, suffering harm. In these circumstances Mr Rowley and Miss Woodward question both the necessity and the proportionality of the children remaining in foster care. Their safety, both physical and emotional, can, it is submitted, properly be met while the children remain at home; their safety, whether physical or emotional, does not necessitate their remaining in foster care.
  2. In the final analysis, say counsel, my task is to evaluate the risk of harm deriving from the possibility of flight and balance that against the undoubted harm the children are suffering because of continued separation from their parents. Given the adequate safeguards against the risk of fight which they assert can be put in place, the balance, they submit, comes down in favour of returning the children to their parents.
  3. Both local authorities are clear that they feel unable to exercise the parental responsibility vested in them by the interim care orders unless the children remain in foster care. That being so, Mr Rowley and Miss Woodward say that the appropriate order is, in each case, an order discharging the interim care orders, making the children wards of court, and placing them in the care and control of their parents, subject, however, to a raft of stringent protective orders.
  4. What Mr Rowley and Miss Woodward propose is in each case an order containing: passport orders in the usual wide-ranging form and an all-ports alert; injunctions restraining the parents removing the children from the jurisdiction and requiring them to live with the children at a specified address; and provisions for the monitoring of the parents and the children by a combination of unannounced visits by the local authority, regular reporting to a specified police station or local authority office and, in the case of the parents, electronic tagging. It is proposed that the order should include a provision requiring the parents to swear on the Quran that they will abide by each and every provision of the order and that the order should spell out the consequences (including but not limited to committal for contempt of court) in the event of any non-compliance.
  5. There is no need for me to consider whether I would have power to impose such orders on unwilling or recalcitrant parents, for all the parents here are willing to submit to whatever restrictions, including electronic tagging, I think it necessary to impose for the safety of the children. That said, I am inclined to agree with the views expressed by Singer J in the passage from his judgment in Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, para 46, which I refer to below.
  6. Mr Rowley and Miss Woodward realistically accept that, however stringent the protective measures which might be put in place, there will always be some risk that the parents will be able to flee with the children. But they counsel me against being too concerned by remote or fanciful possibilities. An order the court makes is not, they submit, to be measured by the standard of certainty or infallibility but by reference to what Mr Rowley called real-world possibilities. Judged by that standard, he says, the risk is slight indeed, in reality reduced to an effective nullity if the parents are, as they propose, subjected to GPS electronic tagging (as to which see below).
  7. To get the children to Syria, he says, the parents would: have to cut the tag (thereby triggering an immediate alarm), having made arrangements to travel immediately to a point of exit from the United Kingdom; have to evade detection while in transit there; have to evade detection at the point of exit despite their being in a family group, the all-ports alert, and publicity about them being on the run; have to be able to pass through the immigration controls of a second country without detection; and have to be able to cross from that country (or some third country) into Syria. Whilst he accepts the possibility that the parents have the connections and means to achieve all this, Mr Rowley disputes that there is any evidence upon which I could reasonably infer it.
  8. More tellingly, perhaps, Mr Rowley makes the point that if the parents do indeed have the means to achieve this, the children are not safe in their foster placements. For if they have the resourcefulness and determination postulated by the local authorities and the guardians, the parents would by the same measure be able to track the children down and abduct them. The reality, he suggests, is that nothing short of actual incarceration of the children would ensure the complete eradication of all risk of their being removed to Syria. In truth, he says, the local authorities and the guardians are prepared to countenance a level of risk in the present placements while requiring from the proposed placements with the parents the certainty that all risk has been eradicated.

 

 

Mr Rowley (and no doubt Miss Woodward) go high up on my list of people who have been able to develop a compelling argument from unpromising beginnings.  They manage to make the parents position sound completely reasonable and the Local Authority’s anxieties utterly unreasonable.  In an atmosphere where the pulbic concern about terrorisim and children going to Syria could not be higher. That takes some skill.   One has to remember, of course, that the Court had not conducted any finding of fact hearing about the circumstances and intentions of the parents in making those trips or plans for the trips.

 

To Local Authority lawyers, I’m sorry that I wrongly suggested that you could read this judgment without dread. Of course you know what is about to happen now.

 

  1. The law, even the criminal law in the days of capital punishment, has never adopted a standard of absolute certainty or infallibility. So the mere fact that there is, as Mr Rowley and Miss Woodward accept, some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question I have to decide. That question, in the final analysis comes down, in my judgment, to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?
  2. Given the potential consequences if the parents, being minded to flee with the children, were able to achieve their objective, it seems to me that what the court needs is a very high degree of assurance, albeit falling some way short of absolute certainty, that the protective measures put in place will be effective to thwart any attempted flight. This is ultimately a matter for judgement and evaluation, in relation to matters, in particular those dealt with DS Y, DS Z and Mr Fearnly, which I am in as good a position to assess as any of the social workers or guardians, none of whom can bring to this particular exercise in evaluation either professional training or (as they all accepted) any previous experience of any remotely comparable case. Accordingly, I have to come to my own conclusion, though obviously feeding into my overall evaluation the expert views of the social workers and the guardians as to the impact on the children of their continuing separation from their parents.
  3. At the end of the day, and having given the matter the most anxious thought both during and since the two hearings, I have concluded that the comprehensive and far-reaching package of protective measures proposed by Mr Rowley and Miss Woodward does provide the necessary very high degree of assurance that the court needs, that I need, if the children are now to be returned to parental care. Taking into account all the points pressed upon me by those opposing such an order, I am at the end of the day persuaded by Mr Rowley and Miss Woodward that I should make the orders they seek, and essentially for the reasons they have articulated.
  4. I accept that there is some degree of risk of successful flight. I cannot go quite as far as Mr Rowley when he asserts that it is reduced to an effective nullity by the protective measures he proposes, but taking a realistic view, though not forgetting that we are here in the realm of unknown unknowns, my considered assessment is that the degree of that risk is very small, indeed, so small that it is counter-balanced by the children’s welfare needs to be returned to parental care. I should add, to make plain, that in relation to their welfare (leaving flight risk on one side), the benefits all of these children will derive from being returned to their parents clearly, in my judgment, outweigh any and all of such contrary welfare arguments as have deployed by the local authorities or the guardians. Conclusion
  5. I shall therefore make orders essentially in the terms proposed by Mr Rowley and Miss Woodward. The orders will contain the additional provisions proposed by Mr Crabtree and Mrs Crowley. The orders will spell out that nothing is intended to prevent the police exercising any powers which would otherwise be available to them, including, in particular, their powers under section 46 of the Children Act 1989. I invite counsel to consider two further matters: whether the proposed oaths on the Quran should be sworn before a notary or an imam, and what, if any, provisions should be included in the orders to enable the relevant local authority to remove the children in an emergency if there has been some breach of the order and there is no time to apply even by telephone tothe duty judge. I am inclined to think that the local authorities should have that power, but strictly confined to circumstances of emergency and subject to an unqualified obligation to make an application to the court immediately

 

 

The judgment then goes on to set out the protocol for such matters. It will, I’m sure, calm the nerves of every social worker who is now going to be driven to leave children like this at home under the protection of their parents wearing electronic tags that the tagging system is provided by Capita, whose record is flawless.

 

I am perhaps missing what actually stops these children’s uncles or cousins taking them to Syria if it is the parents who are tagged?  Yes, the parewnts would be stuck her to face the music, but how great a feature is ‘fear of the consequences’ a major inhibitor to terrorism? I have always rather missed how one is to stop these things happening if the parents book a package holiday to Turkey and then just travel onwards once they are out there. Are we going to stop all families going to Turkey on holiday? Or only those who are on some sort of Watch list?  And if only those on the Watch list, given that social workers don’t have access to that, how are they supposed to intervene?

 

Whilst of course, it can’t be imposed on a parent, I’m sure they will be queuing up to agree to it.

The judgment of course does not set out who will be paying for the tagging and monitoring, but we all know that it will be the Local Authority  (or under what power the Court is apparently imposing this expense on the LA – it will be the theoretically limitless powers of the inherent jurisdiction, if anyone ever challenges it)

I wonder how any parent facing an ICO hearing for neglect, or consumption of alcohol will feel, knowing that they too are meeting the same “Reasonable grounds to believe” test as parents of this type, but that parents suspected of taking their children to join a warzone will keep them at home with electronic tags, whereas they may be separated from their own children.

Where exactly is the bar for removal under Interim Care Order, if a case like this isn’t over it?

 

And if tagging works in the interim, what stops these children being tagged for the remainder of their childhood at final hearing, even if the allegations are proven to be true?

 

 

Secret decision to remove

(No, I’ve not asked Christopher Booker to do a guest blog, but this is a case which is worthy of attention, given how much press coverage the Italian C-Section case received. I am quite surprised that this made it through the Lord Nueberger view of article 8 and what the word necessary means in that context)

A Local Authority v C 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4036.html

This is unusual, because it is an application that the Local Authority made BEFORE the birth of the child. I have only ever seen one of these before, the one referred to in the judgment Re D 2009.

    1. The local authority’s application is, therefore, for a without notice order which is not to be served on the mother that:

(a) she lacks capacity to make decisions relating to the future care of her child when born;

(b) it is lawful as being in the best interests of her child when born for its Claimants, its servants or agents immediately to remove the child from the mother’s care and to maintain that separation pending a Court considering the Claimant’s application from an emergency protection order or interim care order;

(c) it is lawful for the minimum necessary force to be used, if required, in the course of effecting and maintaining such separation;

(d) it is lawful for the police to assist in the carrying out of the order by utilisation of their powers pursuant to section 46 of the Children Act 1989; and

(e) it is lawful for the Claimant to withhold from the mother its intention to remove her child from her immediately following birth and, in this regard, not to involve the mother in the planning process for her baby.

(I note that it is a shame that the order accompanying the judgment is not published, since (b) is interesting. It seems as though that might be akin to an Emergency Protection Order made before the baby is born, to take effect at birth. Edit – actually what it does is tell the police (d) that they can lawfully remove under a PPO.  That raises even more questions, since the existing law is that Police Protection ought to be behind making an EPO or ICO application in the pecking order – Liverpool v X, for example)

The mother in this case was said to have profound mental health problems and other issues

Mother has long-standing mental health problems and an IQ of 64. I have read a report from her treating psychiatrist. Her diagnosis is of paranoia and psychosis. She also abuses drugs. She is described as challenging, and she can be volatile. She has had two previous children, both of whom were removed from her very early in their lives. The elder was removed from her care in 2007 aged three weeks, when mother physically injured that child by causing twisting injuries to his arms and bruising to his chest. Both those children now live with those children’s father. She is now pregnant again, by a different father, with an estimated delivery date of 22nd September 2013.

What were the arguments for not telling her?

    1. The local authority perceives there to be a grave danger to the unborn child immediately after birth, in the light of the mother’s mental health problems and the increasingly worrying presentation which has manifested itself to her obstetrician, to social workers and to others. She is undoubtedly incapacitous in some respects, the extent to which is not clear because she has not been assessed. She is likely to have understanding in a number of respects, particularly those aspects of her own health care and her own wishes and feelings about her child which do not require sophisticated intellectual understanding.
    1. Her consultant obstetrician found a very marked deterioration in her presentation. He describes how her usually more placid demeanour has become more and more aggressive, hostile, confrontational and oppositional, during the monitoring of her pregnancy. She has had, until recently, a fairly trouble-free pregnancy and her two previous deliveries were normal. She has had some internal bleeding. It is not clear how accurate her description of the severity is of that. There is a fear there may be problems with the attachment of the baby’s placenta. She became very agitated when he needed to examine her and refused to be examined. She is not currently medicated or accepting her medication, and this cannot take place until after the birth. She showed pressure of speech; she swore, was verbally aggressive and she had what the obstetrician called “an outburst”. She was threatening. A number of minor issues were raised by her which it was impossible to “de-escalate”. He is extremely worried that the mother will not be compliant with staff during the birth process as a result of her discussions with him. I have been referred to his notes recorded in an internal meeting.
    1. If professionals attempt to hold any form of conversation with her on a topic with arouses her emotion she becomes hostile very quickly. All the professionals who have been dealing with the mother are concerned that her mental health is currently deteriorating.
    1. Her consultant psychiatrist reports that it has proved impossible to have a coherent rational conversation with her. She is “very thought disordered”. The psychiatrist anticipates a struggle if the mother is asked to hand over the baby at birth. He believes that the risk to the baby when born would be high if the mother were to be allowed to hold the baby. He also infers that the mother’s mental health was not as severely effected at the time when her older child was injured since she was not known to mental health services at that time.
    1. All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
  1. The view expressed by all the professionals is that if she is told about any plan to remove the baby at birth or after birth (under an emergency protection order or interim care order) this will exacerbate the problems with her mental health and “increase the already risky situation that is likely to occur following the birth”. She is presently in a psychiatric unit and arrangements are being made for her to undergo her delivery at a local hospital.

You should also note that the mother was not represented at THIS hearing, even through the Official Solicitor  (the agency who act on behalf of parents who lack capacity to instruct a solicitor). This was discussed, here

I raised the question with Mr Jones during the course of his carefully presented argument as to whether or not it would be appropriate for me to indeed appoint the Official Solicitor (if he so agreed) to act on behalf of this mother, and for the Official Solicitor to be informed of the nature of the application (or indeed any order), in order that representations could be made to the court. However, I perceive that the Official Solicitor, or indeed any legal representative acting on behalf of a party, incapacitous or not, cannot be bound to withhold information which comes to their notice from their client. And it seems to me that this mother probably has the capacity to understand the nature of this application and that the local authority intends to remove the child from her. In my view, the only basis upon which a legal representative can agree not to disclose information to their client is if that client consents to that course of action, and in order to obtain such consent the Official Solicitor would have to alert the mother to the nature of these proceedings. Mr Jones tells me that the authority shares that concern.

So, the order was made, using the authority of Re D, and the principles set out within that judgment

    1. I have come to the conclusion from the documents which I have read and the submissions that I have heard, that this is indeed a highly exceptional and unusual case and that the history of the mother’s mental health problems, her mistreatment of her other children (and there are other assertions of ill-treatment as well as the injury to the baby), the mother’s increasing volatility, irritability and inability to accept the concerns of others and indeed her deteriorating mental health, do give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
    1. It seems to me that the only way in which that risk and danger can be guarded against is by way of an order that the baby be removed immediately upon delivery. I understand and acknowledge what a drastic step this is, how deeply distressing this will be to this mother (as it would indeed be to any mother newly delivered of a child), and I am in no doubt that she will understand what is happening to her in these circumstances. But I am persuaded, and indeed now convinced, that there is sadly no other way of safeguarding the interests of this child than by making an anticipatory declaration as I am asked, in order that intervention can take place at the earliest possible opportunity.
    1. Weighing up the options (as I must do), removal is the one which safeguards the child’s interests whereas non-removal does not.
    1. This will not deprive the mother of an opportunity to be heard on an application for an emergency protection order or interim care order at the earliest possible date.
  1. I recognise that the first moments after a child’s birth are particularly precious and can never be recovered, but nonetheless the opportunity to have her case heard at the earliest possible moment will go some way to preserving the mother’s opportunity to have a relationship with her child.

It seems therefore, that what the Court did was use the inherent jurisdiction to authorise removal of the baby at birth PENDING a very fast application for an Emergency Protection Order.  The Judge makes it plain that the EPO application must be ready to be heard very swiftly

In Mr Jones’ draft order he refers to an application for an emergency protection order or an interim care order. This local authority is in no doubt as to the basis of its potential application and the application must be prepared now and must be lodged at the first possible moment during court opening hours after the child is born. If I say ‘immediately’, that means that it does not go down by courier; it means that nobody is still checking for spelling mistakes, it means that it is all sorted out and it is all ready to go and it is with the court at the drop-box or in the court office. I direct that the local authority contacts its local Court where the application is to be issued to ask that special arrangements be made for receipt of this emergency application.

I have some problems with this judgment and decision (not as a matter of law, the Judge followed Re D and balanced things but as a matter of principle and human rights).  The remedy here for the removal at birth is that the mother has the opportunity to challenge within a few hours that decision at the EPO hearing. But how realistic is that?

Firstly, she is going to be in a state of complete shock at the removal, which will be a total surprise to her.  (I know that lawyers could look at the history and say “well, an EPO application was likely” but from mother’s perspective, if social workers have been working with her and never said that the baby would be removed, she might well think that she will keep the baby)

Secondly, she is also in the immediate aftermath of childbirth, a process which is fairly stressful, painful and somewhat discombobulating  (that is a huge understatement) – not putting one in the best shape to get dressed and get on a bus to court

Thirdly, when she gets to Court, she is not entitled to instruct a solicitor to represent her, as she doesn’t have capacity

Fourthly, the Official Solicitor hasn’t been warned of the pending application so that they will be ready at court to represent her

So a vulnerable woman, with mental health problems, in the immediate aftermath of childbirth will be in Court, reeling from the shock of removal and representing herself at a contested removal hearing.

Forgive me if I don’t think that this is terribly fair.

In addition to that, the legal tests for an Emergency Protection Order are rightly very high, following Re X, and are particularly high when the Court is only hearing one side of the story (as here). Shouldn’t the Court, when making a pre-emptive EPO using the inherent jurisdiction have to meet an even higher burden on the evidence than Re X?

I don’t blame the LA here – the facts of the case make this a very tricky and difficult decision, and they did place it before a Court for consideration. Nor do I blame the Court, who applied the existing principles, had all of the evidence when I have only seen a flavour of it, and had a hard judgment call to make.  But I do think, and I suspect many of my regular readers will think the same, that this mother has not been fairly treated. Is the fact that she would react very very badly to the news of the plan for removal really sufficient to take from her her article 6 right to a fair hearing about that removal?

Do we have a proper system in place for mothers who have profound mental health problems, not least because often their drugs to control their condition aren’t conducive to being taken in pregnancy? Shouldn’t we be doing more? What are the safeguards for people like this mother?

(I don’t think this will be opening floodgates – the 2009 decision was viewed by most lawyers who read it as being something that would only be used in the most dramatic and extreme circumstances. I’m not sure these are those, however.  I do honestly think that this case probably justifies more public debate than the C-Section case – at least she had legal representation, even if one could argue that she didn’t get much of a say in it )

“Social Services are asking me to put my child in care, and they want me to do it now”

 Some important things for you to know, if you are asked to put your child in care. And some practical tips.

 

Firstly, and I can’t stress this enough – I am not your lawyer, just A LAWYER, and what is right for you and the circumstances of your case are things I don’t know, and the best thing I can recommend is for you to either talk to your own lawyer or find a lawyer and talk to them.

If you need to find one – you came here on the net, so you have internet. Google “family law firms in X” (where X is your town or county). Look for ones who do Care work if you can. Get in touch with them and make an urgent appointment.

There might be a good reason for you, and your family, why agreeing to the children coming into care is a good thing. What I want to help you with is not agreeing just because you feel you have no choice, and before you have had chance to think and ask your own lawyer what to do. If you honestly feel that it is the right thing for you, don’t be put off by me. I am trying to help people who feel that it ISN’T the right thing for them.

That done, back to your situation. You are a parent, social workers have come to your house, told you that they are worried about your children and think they need to come into care and are asking you to agree.

Here are some important things to know before you make any decisions

1. You don’t have to say yes. It has to be your free choice.

2. You don’t have to decide right now.

3. You are entitled to tell them that you want some legal advice before you decide something as big as that.

4. If you are told “If you don’t agree we will go to Court”, this is supposed to make you agree to avoid going to Court. It doesn’t have to. The Court will listen to your side of the story, and it might be that going to Court is the right thing for you to do. At the very least, it will get you a lawyer who will listen to you, give you advice and speak on your behalf.

5. The social worker doesn’t have any magic powers to be able to take your children away. They have to have either your agreement, or a Court order. Except in very specific circumstances, they can’t get a Court order without you having a chance to be there, to have your own lawyer speak on your behalf and have the chance to have your say.  They should NEVER go away and try to get that order without you being there if they have asked you to consent to the children coming into care and you have said no. That hearing should be with you present.

6. If they DO have that Court order, you will have a chance at a later Court hearing to challenge and fight it, but I’m afraid the order does give them the power to remove (if it is an Emergency Protection Order or an Interim Care Order) and trying to prevent them won’t do much good. You can try to tell them the names of other family members who would be willing and able to look after the children (as they have to consider placing the children within the family rather than with strangers if it is safe to do so)

7. The police do have the power to take your children away without a Court order (I’ll come back to that later) so you will know that if the police aren’t there and there isn’t a court order, your children will not be going anywhere unless you agree or until you have your say in Court.

Here are suggestions for what you can do if you are asked to make that decision

Very hard to do, but keep calm. It is likely that what you do and say in the next hour or so will end up being information given to the Court. It can be information that helps you (you were calm, reasonable but firm) or that hurts you (you got aggressive, shouting, or physical, or the children were exposed to lots of drama and distress whilst all this was going on).

With that in mind, it is perfectly fine to say something like “That’s a real shock. I want to talk about this, but I don’t want the children to have to hear it. Can we sit down with the children being in another room and talk about it for a bit?”

And “I’d really like to get some legal advice about all this before I decide anything at all, does this have to be decided right now?”

If they are insisting on it being right now, it is fine for you to ask why, and also fine for you to ask them for some paper, so you can make a note of what they are saying.

It is also fine to say “I would like to call my lawyer to see what they think and I am going to do that now, just so I know where I stand”

[I don’t know whether agreeing to the children coming into care is right for you, or right for your situation, that’s a matter for you and your lawyer. What I want to do is give you the chance to make that decision and think about it and know what it means.]

The social worker will probably say something along the lines of “I’m afraid if you won’t agree now to the children going into care, then I’ll go to court and get an order for them to come into care”

And as I said earlier, you need to remember, that what they actually mean here is “I’ll go to court and ASK for an order for the children to come into care, and you will be at Court and you can ASK for them to stay at home, and the Court will make a decision”

And also that the Court don’t automatically grant those orders – they require the social worker to have evidence that the children are at risk and that going into care is the only thing that can be done, and that everything else that could be tried either has been or isn’t safe to try.

It might be that for you, going to Court is better than agreeing for the children to go into care. You would have your chance to fight this in Court, to have someone speak for you, and the chances are that if Social Services are in your home asking you to agree to the children going into care that you will eventually have to be in Court in order to get them back. So the threat of the case going to Court isn’t a good reason to agree to the children going into care, if you wouldn’t otherwise agree to do it.

Agree if you do think it is best for you or your children, or if talking it through with your lawyer you decide it is right for you right now, and that you need to sort some things out for yourself first before you have that fight.

If you feel that you are being bullied to agree or make that decision right away, you can say to the social worker “I believe that the High Court in Re CA, decided that section 20 consent has to be voluntary and not as a result of pressure, and that my human rights could be breached if I was cajoled into that agreement”

And “It isn’t that I am not cooperating, but I think a decision about whether my children should be removed is a very big one, and I don’t agree that right now. I’d want to see all of the evidence and have my own legal advice before I thought about it”

What if the police are there?

If the police are there, all of these discussions become much more serious. The police do have the power to take the children away, under Police Protection. That lasts for 72 hours, after which time the social workers have to either get a Court order, or your agreement to the children being in care, or a Court order.

So you would have a right to challenge and fight to get the children back in 72 hours, but you obviously want to avoid that happening if at all possible.

So firstly, again keep calm. Shouting, yelling, screaming, throwing things, being aggressive are all things that make the police more likely to use that power. Try not to give them any excuse.

Here are the magic words, if the police say “we are going to take your child into police protection” or something similar.

“Officer, I’m not being difficult, but I see that you have come with the social worker, which means social services are already involved. And as the High Court said in Re CA 2012, where that is the case, the social worker ought to go to Court to seek an order from the Court, so my human rights aren’t breached by the police or social services. And you will know from the Liverpool case that the police shouldn’t just take a child into police protection to save the social worker the trouble of going to court. And so you should only take the children into police protection if the risks are so great that they can’t be kept safe until the case is heard in Court. I won’t do anything silly and I won’t run away. I will go to Court and the Court will decide. If you want, you can watch me with the kids, or they can go to (my mother/aunt Beryl/whoever) until the Court case starts, then you know everything will be fine.”

That may well put the fear of god into them. It will probably make them think “God, I don’t know anything about the law on this, but this person seems to, and the High Court say we shouldn’t do this”

And you won’t have said anything that isn’t (a) true and (b) fair. No threats, no shouting. Just a reminder that the police aren’t supposed to do social workers dirty work for them, unless there is evidence that the children won’t be safe with you even for an hour whilst the social worker gets a Court hearing sorted out.

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

suffice.

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]