Gloucestershire County Council v A Mother & Ors (discharge of care order) [2017] EWFC B47 (27 July 2017)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of the family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court

Case No: BS16C00499

IN THE FAMILY COURT AT GLOUCESTER

Gloucester Family Court

Kimbrose Way, Gloucester

Date: 27/07/2017

Before :

HHJ WILDBLOOD QC

- - - - - - - - - - - - - - - - - - - - -

Between :

	Gloucestershire County Council	Applicant
	- and -
	A mother	First Respondent
	-and-
	A father	Second Respondent
	-and-
	A child (by the guardian)	Third Respondent

- - - - - - - - - - - - - - - - - - - - -

Sarah Pope for the Local Authority

Ben Jenkins for the mother

James Cranfield for the father.

Grace Trenchard for the child.

Hearing dates: 27th July 2017

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT

HHJ Wildblood QC :

1. Introduction - I am releasing this judgment into the public domain having provided the parties with a copy of it prior to doing so. I have also consulted briefly with the Family Division Liaison Judge for this area in relation to this case. Members of the accredited press have attended this hearing and all parties, including the officers of the press, have agreed upon what may, and what may not, be reported. The names, whereabouts and personal circumstances of the child and family members will not be published save to the limited extent mentioned in this judgment. The names of social work and other professionals will not be published, so as to avoid jigsaw identification. I name the legal representatives so that I can properly convey my gratitude to them for the highly skilful assistance that they have given to me and their clients.

2. It is accepted by everyone involved in this case, including the Local Authority, that there were serious errors in the Local Authority’s handling of it. It is recognised that, as a result, immense distress has been caused to a family. The errors relate to the placement of a child at home under a care order and the subsequent removal of that child into foster care without notice to the mother.

3. As this judgment will explain the child concerned was placed at home with the mother under a care order made on 4^th November 2016 and was removed, wrongly and without prior notice, from the mother’s care on 1^st June 2017. On 19^th June 2017 the mother made her current application for discharge of the care order. At the time an application was not made by her for an injunction to prevent the continuation of the removal but an application to that effect has been deemed to be made. Following the making of the discharge application documents have been filed and the case eventually came before me on 14^th July 2017. In a Local Authority meeting three days before that hearing it had been accepted that the child should return to the mother and that removal had not been justified. Ms Pope states in her skeleton argument that ‘it is accepted on behalf of the Local Authority, with hindsight, that the immediacy and urgency of the concerns regarding the mother’s parenting and behaviour [that led to removal] fell far short of the threshold of significant and immediate risk of harm referred to in [case law]’. The case law mentioned gives authoritative guidance on the circumstances in which removal might be justified where a child in care is placed with a parent.

4. The mother’s therapist summarised the impact on the mother and child of the removal of the child in the way that occurred by saying: ‘the event was highly traumatic for them both so we have had to use the sessions to help the mother deal with this new and, in my opinion, unnecessary and highly distressing event which has created yet another trauma to add to all the traumatic experiences she has had since childhood and adolescence. The mother has been grief-stricken since 1^st June…’. I note that, in addition to the trauma of removal, the mother had also experienced a major bereavement at the end of May 2017 and also had been undergoing therapy which inevitably unearthed difficult emotions for her in a way that was foreseen at the time of the making of the care order [C16, para 42]. The guardian’s solicitor specifically referred me to E11 where the psychologist gave specific advice that the mother was ‘particularly sensitive to criticism, specifically if this perceived criticism is from Social Services… [the Local Authority should]… involve parents in all decisions and provide intensive support at crisis points’.

5. It is an enormous credit to this mother that she has continued to work with the Local Authority in the way that she has, despite the events that have occurred. I very much hope that she will continue to do so in the interests of her child.

6. Of the decision to remove the child without notice the Independent reviewing officer said: ‘it is my view that the decision not to give the parents 14 days’ notice was inadequately risk assessed, lacked current legal advice and was misleading to the professionals at the strategy meeting’.

7. Further, it is plain that the Local Authority itself had significant doubts about the legality of removal but no legal advice was sought at the time. I will refer to that in more detail later but I wish to draw at the outset from the case of G and N County Council [2008] EWHC 975 in which McFarlane LJ said that, in circumstances such as this, ‘the human rights considerations require that the quality of the process should be at least as high, if not higher, than in an emergency protection order case’.

8. As is well known in this area, an Ofsted report was published on 13 June 2017 which rated Gloucestershire’s children’s services, particularly safeguarding leadership and management, as inadequate. As a result many measures have been put in place already by the Local Authority to improve its performance. In particular a new interim leadership team has been appointed. The errors in this case occurred before the new leadership team took control and before the publication of the Ofsted report. To my mind the events in this case:

i) Give a clear example of the enormity of the task that now befalls that team.

ii) Signal how important it is that the new leadership team is offered every support and assistance in putting right the things that have been going wrong before its time. I have met with the new leadership team and intend to continue to do so in order to offer any assistance I can. I do hope that others will also support the interim team as much as they can.

iii) Demonstrate the local need for a better understanding of what should and should not be done where there is a care plan for a child to be placed with a parent under a care order. I have offered my help with achieving this better understanding by attending lectures, conferences and other workshop events when I can.

9. Therefore, my intention in releasing this judgment is not to engage in pointless or damaging negativity. Quite the reverse. My intention is to identify what went wrong in a bid to ensure that highly damaging events such as this do not occur again in this area. There is a great deal to be done and the responsibility for doing it does not all lie with the Local Authority. Although the statistics for the duration of care proceedings in the Gloucester court area have been reasonable for much of 2016 the figures for the last quarter, ending on 30^th June 2017 and based only on cases relating to 17 children showed that such cases were taking an average of 38.9 weeks here. The statutory expectation is that cases will not take more than 26 weeks (section 32(1) of The Children Act 1989) and 38.9 weeks is far beyond the national average.

10. Fortunately, this child is now back with the mother and, today, I will give directions about the mother’s current application to discharge the care order.

11. Apology by Gloucestershire County Council – I also think that it is important to set out, right at the outset of this judgment, the apology that has been given by the Local Authority. On 21 July 2017 I received a letter from the interim (i.e. new) director for children’s services in Gloucestershire. I am very grateful to her for taking the time to write to me. In that letter she said as follows (I have removed any detail that might identify the family): ‘I am writing to you to express my sincere apologies for the way in which Gloucestershire’s children’s services have supported [this child] in the family. Our practice and decision-making have fallen short of the standards required and have resulted in considerable distress for the child and the parents. I have written to the child and the parents acknowledging and apologising for the mistakes we have made. I recognise that we have not acted in the best interests of the child in removing the child from the care of the parents and for this we are truly sorry. I have asked the interim improvement and operations director to continue to have oversight and involvement in the future planning for the child so that we do not repeat the mistakes of the past. As you are aware Ofsted has judged our help and protection services as inadequate and we are now seeking to put the building blocks in place to improve and sustain practice. I acknowledge that on all levels we have failed to reflect upon practice or decisions appropriately. This case will be used with practitioners to educate and inform their future practice. I welcome your offer to the interim improvement and operations director to work with us in this regard and trust that we can work together to improve the lives of children in Gloucestershire’.

12. On the same day a statement was filed by the interim improvement and operations director in the knowledge of the above letter from the interim director. It ends in this way: ‘I apologise unreservedly to the court and the family for the fact that, in their attempts to safeguard the welfare of the child, Gloucestershire’s children’s services caused immense distress. I want to place this action in the wider context of the recent Ofsted report which was published on 13 June 2017 and rated Gloucestershire’s children’s services, particularly safeguarding leadership and management, as inadequate. Shortcomings of the extent outlined in the report will take determination and time to put right. Senior managers in post now are determined to deal with these challenges in an open and honest manner and work in partnership to make improvements and focus on the child. I intend to take a number of actions and put in safeguards to ensure this type of conduct is not repeated. Some of the actions I intend to take are as follows: i) the use of this specific example to develop an education programme for all levels of staff to promote best practice; ii) for a period of three months, I will have oversight of all cases where action to remove children who are subject to care orders and placed at home/with relatives, is being considered; iii) a seminar to be held involving legal staff and senior children’s social care managers to explore more effective joint working, communication and to develop a common understanding of decision-making iv) we are also planning learning events in collaboration with our legal team, principal social workers and the judiciary to educate staff and develop a better understanding of the court and legal processes; v) I will also be commissioning an independent review of this case to look at what went wrong and how such problems can be avoided in the future. In order to provide greater confidence to the court in this particular case, I will have personal oversight of this case until the matter is concluded to ensure that matters are progressing satisfactorily’.

13. What went wrong? – The first point – Inadequate regard to care plan. The Local Authority accepts that it did not pay sufficient regard to the care plan. In the autumn of last year a court made a care order in relation to a young child who is now still under two years old (therefore the letter to the child will not mean anything to the child now but may be an important document to be held on the records). The mother of the child is in her early 20’s, the father of the child lives separately from the mother but has remained in contact with the child. At the time of the care order it was agreed that the child would remain with the mother in a mother and baby foster placement but that there would be a phased return of mother and child to the community from that placement. It was also expressly agreed that the child would not be removed from the mother by the Local Authority under the care order without fourteen days’ notice, unless emergency intervention required immediate removal. If the child was removed from the mother it was agreed that the child would be placed with the father.

14. Those agreed matters were set out in a care plan. The care plan is an important document which is required in all cases where there is an application to the court on which a care order might be made – see section 31A of The Children Act 1989. The care plan must contain information prescribed by the Care Planning, Placement and Case Review (England) Regulations 2010. It is the document that informs the court and the parties what the Local Authority intends to do if a care order is made. Of course events following the making of the care order may make a departure from the care plan necessary – I would wish to emphasise that point and recognise that it would be obvious nonsense to suggest that a Local Authority must adhere indefinitely to its care plan come what may – for instance, contact arrangements may need to vary, a placement may breakdown, a carer may become unwell, etc.

15. However, the care plan remains an important document. It seems crystal clear that, in this case, insufficient regard was paid to it in the months immediately following the making of the care order and also at the time of removal. I consider that is the first learning point for the Local Authority. The points that I make below expand upon this first point because they set out how the social work team that took over the case following the making of the care order formed the view that the care plan had been incorrect and that the mother should never have been released into the community with the child.

16. Further, the care plan stated that written notice would be given to the mother by the Local Authority in the event that improvements were needed in her care of the child [D14]. No such notice was given to her despite what is said about the deterioration in her care of the child in the months leading up to removal

17. On behalf of the father the inevitable point is made that the care plan stated that, in the event of removal from the mother, the child would be placed with the father. He complains that the inadequacy of the assessments extended to why the child was not placed with him. The Local Authority accepts that greater consideration should have been given to the father as a carer at the time of removal.

18. Further, a paternal aunt of the child was assessed at the time of the making of the care order and was regarded to be a suitable carer following a full assessment. The assessment was a full special guardianship assessment. The father therefore asks; ‘why was the child placed with foster carers that were unknown to the child when my sister was available and had been assessed positively’. At the time of the care order the Local Authority’s written evidence was that a placement with the paternal aunt ‘would be a positive family placement for the child if this was required’. The Local Authority accepts that consideration should have been given to a placement with the paternal aunt at the time of any removal rather than placing this young child with strangers.

19. The second point – Inadequate regard to court process – The Local Authority accepts that it failed to pay sufficient regard to the fact that the care order was made by a court after very full enquiry. The mother and child left the foster placement and moved back into the community (that is, into their own home) in the early weeks of January 2017. The father had contact with the child as had been agreed when the care order was made. The mother had support from a number of sources but, in particular, from the Local Authority children’s services, a therapist and a health visitor.

20. However, the Local Authority took the view, according to a document filed on 31^st May 2017 by the then social worker and the team manager [C38], that ‘unfortunately, Placement with Parent Regulations (PWP) were not completed prior to [the child] being placed with the mother in the community. It is my opinion that had this been presented to the Director of Social Services prior to the final care order being made that this case would not have met with the stringent requirements for a child to be placed within the community with a parent under a legal order due to the concerns already raised. This remains the case to date and I am very concerned that PWP regulations will not be supported by the Director of Social Services and in any event that I cannot recommend that they should be agreed’.

21. The second point that appears to have gone very badly wrong is that there was a failure in the then social work team to recognise the significance of the court process or attach any adequate weight to the very extensive array of evidence that had been filed in support of the making of the care order and care plan. The suggestion that the care order should not have been made on the basis of the care plan was at best superficial and misguided.

22. What is more:

i) The care order was made by the court, having considered the evidence and the representations of the parties. The court considered that the care order was appropriate on the basis of the care plan. Once the order was made by the court it was the duty of the Local Authority to put it into effect. If it doubted the legality of its own actions the solution lay in either: a) remedying its own illegality by taking the steps required by the regulations or b) returning the case to the court. The remedy did not lie in removing the child in contravention of its own care plan and without proper notice to the parents.

ii) On making the care order, the court had the benefit of a report from the child’s guardian as well as a large amount of other evidence, including the evidence of an experienced psychologist. The Local Authority had been involved with this family for a long time, knew it well and had carried out extensive parenting and other assessments – they are detailed in the court bundle at C10. The mother and child underwent a long period of observation in a mother and child foster placement. The Local Authority would never have promoted the care plan that was made if it had not carried out sufficient assessment to do so.

iii) All relevant parties were represented upon the making of the original care order. They each supported the making of the order. Thus the Local Authority itself sought the order that was made on the basis of its own care plan.

23. The third point – Failure to comply with Regulations – This again is accepted by the Local Authority. The suggestion that the placement of this child with the mother was in breach of regulations is itself serious. It was the Local Authority itself that recommended this placement at the time that the care order was made. It filed a care plan to that effect and attended a court hearing where it promoted the placement with the mother under the care order as the correct outcome for this child. It recommended and organised the move of the mother and child from foster care into the community. The duty under the regulations falls on the Local Authority. Thus the passage that I have cited above amounts to a suggestion that the Local Authority has failed in its statutory duty.

24. The regulations in issue are the Care Planning, Placement and Case Review (England) Regulations 2010, with which the Local Authority should have been well acquainted. Regulation 17 provides that the Local Authority must assess a number of prescribed matters before placing a child with a parent, including ‘the suitability of the parent to care for the child’. When making a recommendation within proceedings that a child should stay with her mother I do not understand how the matters prescribed within the regulations could not have formed part of the Local Authority’s assessments – on what basis were recommendations made? How could there not have been appropriate consultation before the care plan was advanced by the Local Authority as its proposal.

25. The fourth point - The lack of balance in the assessments of the mother prior to removal. The Local Authority accepts this and says that ‘the difficulties arose within a team where there were constant changes of personnel and recruitment difficulties (and therefore a heavy reliance on agency workers)’. Undoubtedly, there were difficulties when the mother was caring for the child prior to removal. Within the documentation the previous Local Authority team manager filed a statement in which it was said: ‘it is unfortunate and regrettable that, despite professional support, the mother’s emotional fragility, mood swings and unpredictable behaviour, high stress levels as a single parent, frequent hostility towards professionals, non engagement with support and advice provided and her mutually hostile relationship with the father, have all had an emotional impact on [the child], putting the child at daily risk of harm’.

26. There is now a very strong body of professional opinion that the assessments that led to the removal of the child lacked balance. Indeed, the Local Authority itself states at C177 that ‘given that the assessment by the [previous] social worker was largely opinion based and that its contents are disputed by the mother and also by the health visitor, I agree with the current team manager’s view that a fresh assessment needs to be carried out and that the assessment completed by the previous social worker should be disregarded’.

27. The guardian says this in her position statement of 13^th July 2017:

i) ‘The independent reviewing officer now takes the view that [the child] should not have been removed from the mother’s care. That decision was taken because the Local Authority was relying on the concerns collated by the previous social worker. These have now been reviewed and the Local Authority is of the opinion that some of the views expressed by the previous social worker were biased and the single assessment that she undertook was inaccurate. In particular, the health visitor has raised concerns that she was misrepresented within that assessment. The independent reviewing officer has scrutinised the revised care plan and the schedule of expectations for both parents and is now of the view that the child should be returned to the mother’s care [immediately] with the support package agreed. She also endorses the father’s contact being supervised for the time being….

ii) The project manager had raised concerns with her department from the moment that [the child] had been removed from the mother’s care. She had been present in the building at the time. Her view was that this was a knee-jerk response and that the department’s concerns for the child in the mother’s care could have been addressed within the mother’s home. She raised the matter with the independent reviewing officer and escalated her concerns to the director of Children’s Services. In particular, the project manager criticised the department’s lack of support around the mother’s transition to the community and the negativity towards the mother that the social worker at that time displayed. The project manager’s argument was that the mother deserved a fair opportunity to parent the child with the right support in place….

iii) The guardian is deeply saddened by the behaviour of this Local Authority towards the child and towards this vulnerable young mother. Unnecessarily separating this child from the mother will have caused the child emotional and psychological harm and will have disrupted what appears to have been a secure attachment to the primary carer. Moreover no thought was given to the fact that the child was still being breast-fed when removed from the mother’s care, potentially causing the child physical harm. It is the guardian’s view that the Local Authority breached the child’s human rights (Article 8; right to respect for private and family life).

28. In her statement, the interim improvement and operations director said this: ‘On 30^th June 2017 the case was allocated to another social worker (2). His manager arranged to meet the mother on 5^th July 2017 and reviewed the case. This team manager (2) was concerned about the decision to remove the child from the mother’s care and the negativity and perceived bias in the social worker’s assessment and asked for another assessment to be carried out. The team manager (2) felt that the Local Authority had a duty to assess the mother and that the mother had not received the support she needed. She was concerned that, during the transition period, there was no allocated worker and that Placement with Parents Assessments had not been completed. On 7^th July 2017, team manager (2) sent an email to the Interim Improvement and Operations Director to express her concerns about the decisions which had been made in respect of the child and the removal from the mother’s care. She was of the view that the decision was premature and that the Local Authority could have done more to support the mother’.

29. I have read the assessment that was carried out by the previous social work team and which led to the removal of the child from the mother. I see very good reason why that assessment, dated 30^th May 2017, has been regarded to be unbalanced and unsatisfactory. I give these examples:

i) The author, a social worker, purports to comment on the quality of a psychological report that was prepared for the care proceedings and to compare, in a negative way, that report with a much earlier report by another psychologist [C27].

ii) The author went so far as to say that the evidence before the court at the time of the making of the care order suggested that the mother could not work with the Local Authority ‘and [meaning or] other professionals’ and prioritised her own needs [C27]. Manifestly that was not the view of the social work team at the time of the order and, if C27 had been right, the care plan would have been very different. At C7 of the court bundle there is a statement from the social worker involved at the time of the care order which states that the mother co-operated with parenting assessments, had demonstrated a positive improvement in her parenting, had worked closely with the health visitor to address parenting needs and demonstrated a good understanding of the child’s needs. C7 is entirely inconsistent with C27.

iii) The chronology of events that follows in the assessment at C28-32 certainly is expressed in terms that appear to be strongly negative.

iv) The analysis section of the assessment at C37-39 contains the passage that suggests that the approval under the 2010 Regulations would never have been given if it had been sought. It once again refers to the 2013 psychological report and ‘concurs’ with it in preference to the report of the other psychologist who reported in 2016 [C37]. Again it is expressed in strongly negative terms.

30. Perhaps the most rock solid basis for concluding that the May assessment was unbalanced is demonstrated by the fact that, as soon as this case came before me in July, it was recognised that the child should go straight back home that day and that the removal had been wrongful.

31. The fifth point – The manner in which removal was effected – The Local Authority accepts that it acted in a way that was ‘entirely wrong’. On 1^st June 2017 the mother took the child for contact with the father which was to take place under the supervision of the Local Authority. Shortly after the start of that contact visit the child was taken by the Local Authority and placed in foster care and the mother received a message that she should attend the offices of the Social services. There, in the presence of a police officer, the mother was told that the child would not be returning to her.

32. That arrangement was patently wrong:

i) It was plainly wrong to act with that degree of subterfuge and immediacy.

ii) As the guardian says, the fact that the mother was still breast feeding the child appears not to have been taken into account to any adequate degree.

iii) Nowhere have I seen any consideration of any arrangements being considered that might have kept the mother and child together if further assessment was to take place – for instance a return to a mother and baby foster placement.

33. I accept that the removal of the child from the mother in those circumstances must have been deeply traumatic for the mother, the father and the child. That trauma was unnecessary. The actions of the then Local Authority team were disproportionate.

34. Sixth point – lack of legal advice. The Local Authority accepts that legal advice should have been obtained in relation to the removal. No legal advice was taken by the social work team as to its legal duties in circumstances such as this at the time of removal. The Local Authority has a legal department that deals with child care issues exclusively and therefore there is no doubt at all that legal advice was available. The Local Authority accepts that legal advice should have been sought. The interim Improvement and Operations Director says in her statement: ‘legal advice should have been proactively sought prior to any decision to remove the child’. I agree.

35. Legal advice was sought in March 2017 and ‘advice was given that the parents would need to be given fourteen days’ notice of the Local Authority’s intention to remove the child from the care of the mother’. Thus the fourteen days’ notice provision was known and had been the subject of advice. Thereafter no further legal advice was obtained prior to the removal. I have been told that an attempt was made to contact a named solicitor in the legal department of the Local Authority but she was away on leave and no attempts were made to obtain advice from other sources before the removal occurred.

36. Seventh point – Lack of notice prior to removal. It is now accepted by the Local Authority that removal at the time it was effected was not justified even though it remains of the opinion that there was a deterioration in the mother’s care of the child. That necessarily means that there was no basis for removal without notice. This was not an emergency. Under the terms of the care plan notice should have been given to the mother and to the father before this child was removed into foster care. In my opinion it is clear that the Local Authority acted in a way that was contrary to case law and in breach of the Article 8 rights of both parents and the child.

37. There is very clear legal authority on this point and I have no doubt at all that, if legal advice had been sought by the then social work team at the time of removal, the legal team of the Local Authority would have advised upon it. In the case of Re DE [2014] EWFC 6 Baker J said:

i) Previous decisions have identified that the local authority's duties under Article 8 are not confined to substantive obligations to refrain from inappropriate interference with the rights to family and private life but also incorporate procedural safeguards. The procedural element includes the duty to ensure that the processes by which decisions about children are made are fair and that the parents (and the child, depending on his age and level of understanding) are sufficiently involved in that process: see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam) [2002] 2 FLR 730, Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam) [2003] 2 FLR 42, and Re W (Removal into Care) [2005] EWCA Civ 642 [2005] 2 FLR 1022. As Munby J (as he then was) observed in Re G, Article 8 "requires that the parents are properly involved in the decision-making not merely before the care proceedings are launched, and during the period when the care proceedings are on foot ….but also … after the care proceedings have come to an end and whilst the local authority is implementing the care order …."

ii) At paragraph 45 of Re G, Munby J spelt out the local authority's obligations in clear terms: "In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made."

iii) 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 …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.

iv) 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.

38. In the case of DE, Baker J also stated as follows:

a) To avoid the problems that have arisen in this case, the following measures should be taken in future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) 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 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 and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home.

b) The guidance set out in the preceding paragraph has been seen and approved by the President of the Family Division.

c) Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

39. Eighth point – Mother left to bring matter back to court - I make this point having received submissions on it, discussed it with colleagues and also with Baker J. The point is this: why was it left to the mother to bring the case back before the court when the Local Authority should have realised that it would be suggested that removal in the manner that occurred was illegal (i.e. in breach of case law and Convention law)?

40. No steps were taken by the Local Authority to return the case to court. The mother did not have lawyers acting for her at the time and her previous legal aid had lapsed. The very basis of the original care proceedings was that the mother is an emotionally fragile and socially vulnerable woman who struggles with the care of her child; therefore, for her to have faced the issues that arose on her own is manifestly unsatisfactory. The child no longer had a guardian since the role of the Cafcass guardian had ended upon the making of the care order last year. There was an independent reviewing officer but the case was not returned to court by that officer either.

41. I am a Circuit judge and do not pretend to any authority beyond my status. However the submissions that I have received in this case and the helpful guidance that I have received from colleagues that I have consulted is to this effect:

i) If a Local Authority acts in breach of the guidance in Re DE, it acts in breach of case law and Convention rights (i.e. Articles 6 and 8 of the European Convention on Human Rights).

ii) If the Local Authority has any doubt about whether it has acted or is about to act in breach of those legal provisions it could make an application to the court for the court’s direction.

iii) Part 18 of The Family Procedure Rules 2010 provides the procedure by which this could be done. I accept that Part 19 is unlikely to be applicable since that relates to cases where the court’s decision ‘is unlikely to involve a substantial dispute of fact’. Part 18 applies where an application is made ‘a) in the course of existing proceedings; b) to start proceedings except where some other Part of these rules prescribes the procedure to start proceedings; or c) in connection with proceedings which have been concluded’.

42. I would wish to emphasise very strongly indeed that I am in no way suggesting that every departure from a care plan requires the Local Authority to apply to the court for ratification. That would be absurd and would also be directly contrary to the intention of the Children Act 1989 where care orders are made. A court does not have a supervisory role where care orders have been made save to the very limited extent provided by statute (e.g. in relation to contact under section 34). There will be cases where immediate removal is both lawful and necessary. However, in the extreme and exceptional circumstances of this case, where a breastfed child is removed from a mother without notice and the Local Authority itself questions the legality of what has occurred I do not see why the Local Authority should not be able to restore the issue to the court. To leave the matter to a traumatised and vulnerable young mother seems to me to be essentially wrong.

43. Ninth point – what scrutiny was there? – To my mind this is probably the most concerning part of this case. There may well be cases where a social worker, or indeed a social work team, acts in a way that is either wrong or mistaken. In this case, the errors were only remedied because the mother took action. In other circumstances, for instance through learning disability, other disability, litigation fatigue or other cause a parent might not. I note that on 29^th June 2017 an email was sent by the Local Authority’s legal department stating: ‘I have now taken instructions and I am advised that the decision to remove the child from the mother without notice was not taken lightly. Careful thought and consideration was given to this course of action. I have asked the team manager who was part of the decision to prepare a statement about what led to the removal’.

44. The previous team manager states in his statement at C116 that the views that he expressed were based on ‘regular discussions and supervisions with the previous social worker…discussions with the IRO and other agency professionals…and supervision with the safeguarding officer and line manager’.

45. As Mr Jenkins submits:

‘The email from the Local Authority’s legal department, in the context of making clear the Local Authority’s position that there will be no further assessment of the parents, made the same points: ‘No further assessments will be conducted…there had also been an escalation of concerns by the IRO around the same time which was not resolved until the end of May. The IRO had the same concerns on multiple occasions due to the parents’ behaviour’’.

46. Mr Jenkins goes on to submit, correctly that ‘the information the author of the email was given by the professionals is not reflected in the statement from the IRO’.

47. The consequence of this was that not only was the original removal wrong but the professionals concerned were stating that there would be no review of the decision to remove. None of the fail-safe mechanisms that should have kicked in against wrongful removal did so. Local Authority management and IRO scrutiny did not lead to any effective challenge to what had occurred.

48. Tenth point – conflicting accounts of what did happen in professional discussions. In my opinion this does not require much expansion. It is already clear from what I have set out above that there is disagreement between professionals about what was said at important meetings. There is a record of the strategy discussion on 31^st May 2017 but that note is not complete. It does not record the misgivings of the police about removal without notice, the timing of legal advice that had been sought (with the IRO assuming that advice had been taken recently when it had not) or, apparently the actual information given by the health visitor. The point that arises is that there must be accurate recording where steps of this significance are taken.

49. The future – The case will proceed now on the mother’s application to discharge the care order and I have given directions in relation to that. There are also likely to be claims for damages for breaches of Convention rights.

HHJ Stephen Wildblood QC

27^th July 2017

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Gloucestershire County Council v A Mother & Ors (discharge of care order) [2017] EWFC B47 (27 July 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B47.html Cite as: [2017] EWFC B47

England and Wales Family Court Decisions (other Judges)