no one listens to a child who wants to stay with their parents when it doesnt fit in with what social workers want.
Sunday 29 January 2012
SCUMCIAL WORKERS HATE PARENTS
no one listens to a child who wants to stay with their parents when it doesnt fit in with what social workers want.
Social Workers gone amateur
social workers are removing children from good family homes on much lesser grounds today than previous to the baby peter case, such as a refusal by parents to participate in their investigations/
They are simply not good enough proportionate reasons to remove a child from their parents. removal from the parents must always be a very last resort, and must only be in the most serious of cases, unfortunately due to the baby peter case their is an outpouring of over-exagerations by social workers whom are simply playing the matter safe to avoid any future baby peter situations, in other words prevention gone badly wrong.
what will eventually come out of this in the next 10 years will be a committee parliamentary commision concluding that thousands of parents in this country had their children taken from them, un-necasarilly, wrongly and unproportionately.
Compensation will be claimed by the millions but that will never bring the parents their children back. the difference being the child may in some circumstances need help, but the parents may not, this is something social services are not willing to consider as their remit is to find blame and the only blame they apportion to a childs bad behaviour is the parents. that is wholly wrong. I was a terrible child, that had nothing to do with my parents. it was to do with the fact i suffered epilepsy and was misdiagnosed. many children show development problems but it has not always anything to do with parenting of the child.
the welfare checklist
this is what a family court judge must consider before ordering a care order / interim care order to a local authority.
The Welfare Checklist - section 1 Children Act 1989
When a court is considering making any of these orders it must have regard in particular to:
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.
courts/social services/cafcass regards 'emotional harm'.
parents are suffering at the hands of the courts/social services/cafcass regards 'emotional harm'. this particular part of the child act in our opinion is unjustifiably unfair and reactionary to the baby peter case.
it is a breach of familys human rights under article 8 right to a family life.
worst of all is 'risk of significant harm in the future' this is a type of crystal ball judgement used by judges whom can not justify their actions on the basis of the evidence currently before them.
more to come
it is a breach of familys human rights under article 8 right to a family life.
worst of all is 'risk of significant harm in the future' this is a type of crystal ball judgement used by judges whom can not justify their actions on the basis of the evidence currently before them.
more to come
Saturday 28 January 2012
knowing the child act helps you see how they fucked up
The
Welfare Checklist - section 1 Children Act 1989
When a court is considering making any of these orders it must have regard in particular to:
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.
When a court is considering making any of these orders it must have regard in particular to:
a) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
b) His physical, emotional and / or educational needs;
c) The likely effect on him of any change in his circumstances;
d) His age, sex, background and any characteristics of his, which the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
For all proceedings under the Children Act 1989 when the court considers a question of the child's upbringing the child's welfare is the court's paramount consideration.
Supervision
Orders - section 31 Children Act 1989
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
Parental
contact etc. with children in care.
(1)Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with—
(a)his parents;
(b)any guardian [F12or special guardian] of his;
[F13(ba)any person who by virtue of section 4A has parental responsibility for him;]
(c)where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d)where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.
(2)On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3)On an application made by—
(a)any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b)any person who has obtained the leave of the court to make the application,the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.
(4)On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order.
(5)When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made.
(6)An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if—
(a)they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare; and
(b)the refusal—
(i)is decided upon as a matter of urgency; and
(ii)does not last for more than seven days.
(7)An order under this section may impose such conditions as the court considers appropriate.
(8)The Secretary of State may by regulations make provision as to—
(a)the steps to be taken by a local authority who have exercised their powers under subsection (6);
(b)the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made;
(c)notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies.
(9)The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order.
(10)An order under this section may be made either at the same time as the care order itself or later.
(11)Before making a care order with respect to any child the court shall—
(a)consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and
(b)invite the parties to the proceedings to comment on those arrangements.
(1)Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with—
(a)his parents;
(b)any guardian [F12or special guardian] of his;
[F13(ba)any person who by virtue of section 4A has parental responsibility for him;]
(c)where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d)where, immediately before the care order was made, a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.
(2)On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.
(3)On an application made by—
(a)any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b)any person who has obtained the leave of the court to make the application,the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.
(4)On an application made by the authority or the child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned in paragraphs (a) to (d) of subsection (1) and named in the order.
(5)When making a care order with respect to a child, or in any family proceedings in connection with a child who is in the care of a local authority, the court may make an order under this section, even though no application for such an order has been made with respect to the child, if it considers that the order should be made.
(6)An authority may refuse to allow the contact that would otherwise be required by virtue of subsection (1) or an order under this section if—
(a)they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare; and
(b)the refusal—
(i)is decided upon as a matter of urgency; and
(ii)does not last for more than seven days.
(7)An order under this section may impose such conditions as the court considers appropriate.
(8)The Secretary of State may by regulations make provision as to—
(a)the steps to be taken by a local authority who have exercised their powers under subsection (6);
(b)the circumstances in which, and conditions subject to which, the terms of any order under this section may be departed from by agreement between the local authority and the person in relation to whom the order is made;
(c)notification by a local authority of any variation or suspension of arrangements made (otherwise than under an order under this section) with a view to affording any person contact with a child to whom this section applies.
(9)The court may vary or discharge any order made under this section on the application of the authority, the child concerned or the person named in the order.
(10)An order under this section may be made either at the same time as the care order itself or later.
(11)Before making a care order with respect to any child the court shall—
(a)consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and
(b)invite the parties to the proceedings to comment on those arrangements.
General
duty of local authority in relation to children looked after by them.
(1)In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a)in their care; or
(b)provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [F40are social services functions within the meaning of] the M4Local Authority Social Services Act 1970 [F41, apart from functions under sections [F4217] 23B and 24B].
(2)In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.
(3)It shall be the duty of a local authority looking after any child—
(a)to safeguard and promote his welfare; and
(b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
[F43(3A)The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement.]
(4)Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)the child;
(b)his parents;
(c)any person who is not a parent of his but who has parental responsibility for him; and
(d)any other person whose wishes and feelings the authority consider to be relevant,regarding the matter to be decided.
(5)In making any such decision a local authority shall give due consideration—
(a)having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6)If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7)If the [F44appropriate national authority] considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, [F45the appropriate national authority] may give such directions to [F46the local authority] .
(8)Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
(1)In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a)in their care; or
(b)provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which [F40are social services functions within the meaning of] the M4Local Authority Social Services Act 1970 [F41, apart from functions under sections [F4217] 23B and 24B].
(2)In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours.
(3)It shall be the duty of a local authority looking after any child—
(a)to safeguard and promote his welfare; and
(b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
[F43(3A)The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child’s educational achievement.]
(4)Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a)the child;
(b)his parents;
(c)any person who is not a parent of his but who has parental responsibility for him; and
(d)any other person whose wishes and feelings the authority consider to be relevant,regarding the matter to be decided.
(5)In making any such decision a local authority shall give due consideration—
(a)having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain;
(b)to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and
(c)to the child’s religious persuasion, racial origin and cultural and linguistic background.
(6)If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.
(7)If the [F44appropriate national authority] considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to a local authority with respect to the exercise of their powers with respect to a child whom they are looking after, [F45the appropriate national authority] may give such directions to [F46the local authority] .
(8)Where any such directions are given to an authority they shall comply with them even though doing so is inconsistent with their duties under this section.
Enforcement
orders
(1)This section applies if a contact order with respect to a child has been made.
(2)If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
(3)But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4)The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)The court may make an enforcement order in relation to the contact order only on the application of—
(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)the person whose contact with the child concerned is provided for in the contact order;
(c)any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)the child concerned.
(6)Where the person proposing to apply for an enforcement order in relation to a contact order is the child concerned, the child must obtain the leave of the court before making such an application.
(7)The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(8)Subsection (2) has effect subject to the restrictions in sections 11K and 11L.
(9)The court may suspend an enforcement order for such period as it thinks fit.
(10)Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.
(11)Proceedings in which any question of making an enforcement order, or any other question with respect to such an order, arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(12)In Schedule A1—
(a)Part 1 makes provision as regards an unpaid work requirement;
(b)Part 2 makes provision in relation to the revocation and amendment of enforcement orders and failure to comply with such orders.
(13)This section is without prejudice to section 63(3) of the Magistrates' Courts Act 1980 as it applies in relation to contact orders.]
(1)This section applies if a contact order with respect to a child has been made.
(2)If the court is satisfied beyond reasonable doubt that a person has failed to comply with the contact order, it may make an order (an “enforcement order”) imposing on the person an unpaid work requirement.
(3)But the court may not make an enforcement order if it is satisfied that the person had a reasonable excuse for failing to comply with the contact order.
(4)The burden of proof as to the matter mentioned in subsection (3) lies on the person claiming to have had a reasonable excuse, and the standard of proof is the balance of probabilities.
(5)The court may make an enforcement order in relation to the contact order only on the application of—
(a)the person who is, for the purposes of the contact order, the person with whom the child concerned lives or is to live;
(b)the person whose contact with the child concerned is provided for in the contact order;
(c)any individual subject to a condition under section 11(7)(b) or a contact activity condition imposed by the contact order; or
(d)the child concerned.
(6)Where the person proposing to apply for an enforcement order in relation to a contact order is the child concerned, the child must obtain the leave of the court before making such an application.
(7)The court may grant leave to the child concerned only if it is satisfied that he has sufficient understanding to make the proposed application.
(8)Subsection (2) has effect subject to the restrictions in sections 11K and 11L.
(9)The court may suspend an enforcement order for such period as it thinks fit.
(10)Nothing in this section prevents a court from making more than one enforcement order in relation to the same person on the same occasion.
(11)Proceedings in which any question of making an enforcement order, or any other question with respect to such an order, arises are to be regarded for the purposes of section 11(1) and (2) as proceedings in which a question arises with respect to a section 8 order.
(12)In Schedule A1—
(a)Part 1 makes provision as regards an unpaid work requirement;
(b)Part 2 makes provision in relation to the revocation and amendment of enforcement orders and failure to comply with such orders.
(13)This section is without prejudice to section 63(3) of the Magistrates' Courts Act 1980 as it applies in relation to contact orders.]
Supervision
Orders - section 31 Children Act 1989
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
These orders are made on the same basis as care orders i.e. that the child is suffering or is likely to suffer significant harm.
These orders do not confer parental responsibility on the local authority, but when there is a supervision order in force it is the duty of the supervisor to:
1) advise, assist and befriend the supervised child
2) take steps that are reasonably necessary to give effect to the order and
3) where the order is not wholly complied with or the supervisor considers that the order is no longer necessary, to consider whether or not to apply to the court to vary or discharge the order.
A supervision order may require the supervised child to comply with directions given by the supervisor to do things such as:
1) live at a place specified by the supervisor;
2) present themselves to specific people at specific places or times e.g. to meet with the social worker;
3) to participate in activities specified on certain days.
A supervision order can also require the child to submit to medical or psychiatric examination as directed by the supervisor. This requirement will only be included where the court has been satisfied on evidence as to its need.
Initially a supervision order lasts for one year. The supervisor can apply to the court to extend supervision order, but the supervision order can only be in place for a maximum of three years.
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).
(3)Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.
(4)An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—
(a)the expiry of the period of eight weeks beginning with the date on which the order is made;
(b)if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;
(c)in a case which falls within subsection (1)(a), the disposal of the application;
(d)in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;
(e)in a case which falls within subsection (1)(b) and in which—
(i)the court has given a direction under section 37(4), but
(ii)no application for a care order or supervision order has been made with respect to the child,the expiry of the period fixed by that direction.
(5)In subsection (4)(b) “the relevant period” means—
(a)the period of four weeks beginning with the date on which the order in question is made; or
(b)the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).
(6)Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7)A direction under subsection (6) may be to the effect that there is to be—
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(8)A direction under subsection (6) may be—
(a)given when the interim order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(9)Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.
(10)Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.
(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).
(3)Where, in any proceedings on an application for a care order or supervision order, a court makes a residence order with respect to the child concerned, it shall also make an interim supervision order with respect to him unless satisfied that his welfare will be satisfactorily safeguarded without an interim order being made.
(4)An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—
(a)the expiry of the period of eight weeks beginning with the date on which the order is made;
(b)if the order is the second or subsequent such order made with respect to the same child in the same proceedings, the expiry of the relevant period;
(c)in a case which falls within subsection (1)(a), the disposal of the application;
(d)in a case which falls within subsection (1)(b), the disposal of an application for a care order or supervision order made by the authority with respect to the child;
(e)in a case which falls within subsection (1)(b) and in which—
(i)the court has given a direction under section 37(4), but
(ii)no application for a care order or supervision order has been made with respect to the child,the expiry of the period fixed by that direction.
(5)In subsection (4)(b) “the relevant period” means—
(a)the period of four weeks beginning with the date on which the order in question is made; or
(b)the period of eight weeks beginning with the date on which the first order was made if that period ends later than the period mentioned in paragraph (a).
(6)Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7)A direction under subsection (6) may be to the effect that there is to be—
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(8)A direction under subsection (6) may be—
(a)given when the interim order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(9)Paragraphs 4 and 5 of Schedule 3 shall not apply in relation to an interim supervision order.
(10)Where a court makes an order under or by virtue of this section it shall, in determining the period for which the order is to be in force, consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full.
Discharge and variation etc. of care orders and supervision
orders.
(1)A care order may be discharged by the court on the application of—
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the local authority designated by the order.
(2)A supervision order may be varied or discharged by the court on the application of—
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the supervisor.
(3)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.
[F20(3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).]
(4)Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.
(5)When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded
(1)A care order may be discharged by the court on the application of—
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the local authority designated by the order.
(2)A supervision order may be varied or discharged by the court on the application of—
(a)any person who has parental responsibility for the child;
(b)the child himself; or
(c)the supervisor.
(3)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.
[F20(3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.
(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).]
(4)Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.
(5)When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded
Care
orders: care plans
(1)Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.
(2)While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)A care plan must give any prescribed information and do so in the prescribed manner.
(4)For the purposes of this section, the appropriate local authority, in relation to a child in respect of whom a care order might be made, is the local authority proposed to be designated in the order.
(5)In section 31(3A) and this section, references to a care order do not include an interim care order.
(6)A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.]
(1)Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.
(2)While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.
(3)A care plan must give any prescribed information and do so in the prescribed manner.
(4)For the purposes of this section, the appropriate local authority, in relation to a child in respect of whom a care order might be made, is the local authority proposed to be designated in the order.
(5)In section 31(3A) and this section, references to a care order do not include an interim care order.
(6)A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.]
Duty
of local authority to ensure visits to, and contact with, looked after children
and others
(1)This section applies to—
(a)a child looked after by a local authority;
(b)a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.
(2)It is the duty of the local authority—
(a)to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);
(b)to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies who seeks it from them.
(3)The duties imposed by subsection (2)—
(a)are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;
(b)are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is accommodated.
(4)Regulations under this section for the purposes of subsection (3)(a) may make provision about—
(a)the frequency of visits;
(b)circumstances in which a person to whom this section applies must be visited by a representative; and
(c)the functions of a representative.
(5)In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
(1)This section applies to—
(a)a child looked after by a local authority;
(b)a child who was looked after by a local authority but who has ceased to be looked after by them as a result of prescribed circumstances.
(2)It is the duty of the local authority—
(a)to ensure that a person to whom this section applies is visited by a representative of the authority (“a representative”);
(b)to arrange for appropriate advice, support and assistance to be available to a person to whom this section applies who seeks it from them.
(3)The duties imposed by subsection (2)—
(a)are to be discharged in accordance with any regulations made for the purposes of this section by the appropriate national authority;
(b)are subject to any requirement imposed by or under an enactment applicable to the place in which the person to whom this section applies is accommodated.
(4)Regulations under this section for the purposes of subsection (3)(a) may make provision about—
(a)the frequency of visits;
(b)circumstances in which a person to whom this section applies must be visited by a representative; and
(c)the functions of a representative.
(5)In choosing a representative a local authority must satisfy themselves that the person chosen has the necessary skills and experience to perform the functions of a representative.
Family
assistance orders.
(1)Where, in any family proceedings, the court has power to make an order under this Part with respect to any child, it may (whether or not it makes such an order) make an order requiring—
(a)[F54an officer of the Service][F55or a Welsh family proceedings officer] to be made available; or
(b)a local authority to make an officer of the authority available,to advise, assist and (where appropriate) befriend any person named in the order.
(2)The persons who may be named in an order under this section (“a family assistance order”) are—
(a)any parent [F56, guardian or special guardian] of the child;
(b)any person with whom the child is living or in whose favour a contact order is in force with respect to the child;
(c)the child himself.
(3)No court may make a family assistance order unless—
(a)F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)it has obtained the consent of every person to be named in the order other than the child.
(4)A family assistance order may direct—
(a)the person named in the order; or
(b)such of the persons named in the order as may be specified in the order,to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person.
[F58(4A)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a contact order made with respect to the child, the family assistance order may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact to such of the persons named in the order as may be specified in the order.]
(5)Unless it specifies a shorter period, a family assistance order shall have effect for a period of [F59twelve months] beginning with the day on which it is made.
[F60(6)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a section 8 order made with respect to the child, the family assistance order may direct the officer concerned to report to the court on such matters relating to the section 8 order as the court may require (including the question whether the section 8 order ought to be varied or discharged).]
(7)A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless—
(a)the authority agree; or
(b)the child concerned lives or will live within their area.
(1)Where, in any family proceedings, the court has power to make an order under this Part with respect to any child, it may (whether or not it makes such an order) make an order requiring—
(a)[F54an officer of the Service][F55or a Welsh family proceedings officer] to be made available; or
(b)a local authority to make an officer of the authority available,to advise, assist and (where appropriate) befriend any person named in the order.
(2)The persons who may be named in an order under this section (“a family assistance order”) are—
(a)any parent [F56, guardian or special guardian] of the child;
(b)any person with whom the child is living or in whose favour a contact order is in force with respect to the child;
(c)the child himself.
(3)No court may make a family assistance order unless—
(a)F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)it has obtained the consent of every person to be named in the order other than the child.
(4)A family assistance order may direct—
(a)the person named in the order; or
(b)such of the persons named in the order as may be specified in the order,to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person.
[F58(4A)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a contact order made with respect to the child, the family assistance order may direct the officer concerned to give advice and assistance as regards establishing, improving and maintaining contact to such of the persons named in the order as may be specified in the order.]
(5)Unless it specifies a shorter period, a family assistance order shall have effect for a period of [F59twelve months] beginning with the day on which it is made.
[F60(6)If the court makes a family assistance order with respect to a child and the order is to be in force at the same time as a section 8 order made with respect to the child, the family assistance order may direct the officer concerned to report to the court on such matters relating to the section 8 order as the court may require (including the question whether the section 8 order ought to be varied or discharged).]
(7)A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless—
(a)the authority agree; or
(b)the child concerned lives or will live within their area.
Special
guardianship orders
(1)A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).
(2)A special guardian—
(a)must be aged eighteen or over; and
(b)must not be a parent of the child in question,and subsections (3) to (6) are to be read in that light.
(3)The court may make a special guardianship order with respect to any child on the application of an individual who—
(a)is entitled to make such an application with respect to the child; or
(b)has obtained the leave of the court to make the application,or on the joint application of more than one such individual.
(4)Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5)The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a)any guardian of the child;
(b)any individual in whose favour a residence order is in force with respect to the child;
(c)any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d)a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.[F42;
(e)a relative with whom the child has lived for a period of at least one year immediately preceding the application.]
(6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—
(a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b)the court considers that a special guardianship order should be made even though no such application has been made.
(7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a)if the child in question is being looked after by a local authority, to that local authority, or
(b)otherwise, to the local authority in whose area the individual is ordinarily resident.
(8)On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a)the suitability of the applicant to be a special guardian;
(b)such matters (if any) as may be prescribed by the Secretary of State; and
(c)any other matter which the local authority consider to be relevant.
(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10)The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11)The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12)Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13)This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
(1)A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).
(2)A special guardian—
(a)must be aged eighteen or over; and
(b)must not be a parent of the child in question,and subsections (3) to (6) are to be read in that light.
(3)The court may make a special guardianship order with respect to any child on the application of an individual who—
(a)is entitled to make such an application with respect to the child; or
(b)has obtained the leave of the court to make the application,or on the joint application of more than one such individual.
(4)Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.
(5)The individuals who are entitled to apply for a special guardianship order with respect to a child are—
(a)any guardian of the child;
(b)any individual in whose favour a residence order is in force with respect to the child;
(c)any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);
(d)a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.[F42;
(e)a relative with whom the child has lived for a period of at least one year immediately preceding the application.]
(6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—
(a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or
(b)the court considers that a special guardianship order should be made even though no such application has been made.
(7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—
(a)if the child in question is being looked after by a local authority, to that local authority, or
(b)otherwise, to the local authority in whose area the individual is ordinarily resident.
(8)On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—
(a)the suitability of the applicant to be a special guardian;
(b)such matters (if any) as may be prescribed by the Secretary of State; and
(c)any other matter which the local authority consider to be relevant.
(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.
(10)The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).
(11)The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).
(12)Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.
(13)This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.
(1)Before
making a special guardianship order, the court must consider whether, if the
order were made—
(a)a contact order should also be made with respect to the child, F44...
(b)any section 8 order in force with respect to the child should be varied or discharged.
[F45(c)where a contact order made with respect to the child is not discharged, any enforcement order relating to that contact order should be revoked, and
(d)where a contact activity direction has been made as regards contact with the child and is in force, that contact activity direction should be discharged.]
(2)On making a special guardianship order, the court may also—
(a)give leave for the child to be known by a new surname;
(b)grant the leave required by section 14C(3)(b), either generally or for specified purposes.
(a)a contact order should also be made with respect to the child, F44...
(b)any section 8 order in force with respect to the child should be varied or discharged.
[F45(c)where a contact order made with respect to the child is not discharged, any enforcement order relating to that contact order should be revoked, and
(d)where a contact activity direction has been made as regards contact with the child and is in force, that contact activity direction should be discharged.]
(2)On making a special guardianship order, the court may also—
(a)give leave for the child to be known by a new surname;
(b)grant the leave required by section 14C(3)(b), either generally or for specified purposes.
Special
guardianship orders: variation and discharge
(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b)any parent or guardian of the child concerned;
(c)any individual in whose favour a residence order is in force with respect to the child;
(d)any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e)the child himself; or
(f)a local authority designated in a care order with respect to the child.
(2)In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3)The following must obtain the leave of the court before making an application under subsection (1)—
(a)the child;
(b)any parent or guardian of his;
(c)any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d)any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4)Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5)The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.
(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b)any parent or guardian of the child concerned;
(c)any individual in whose favour a residence order is in force with respect to the child;
(d)any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e)the child himself; or
(f)a local authority designated in a care order with respect to the child.
(2)In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3)The following must obtain the leave of the court before making an application under subsection (1)—
(a)the child;
(b)any parent or guardian of his;
(c)any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d)any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4)Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5)The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.
11AContact
activity directions
(1)This section applies in proceedings in which the court is considering whether to make provision about contact with a child by making—
(a)a contact order with respect to the child, or
(b)an order varying or discharging a contact order with respect to the child.
(2)The court may make a contact activity direction in connection with that provision about contact.
(3)A contact activity direction is a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned.
(4)The direction is to specify the activity and the person providing the activity.
(5)The activities that may be so required include, in particular—
(a)programmes, classes and counselling or guidance sessions of a kind that—
(i)may assist a person as regards establishing, maintaining or improving contact with a child;
(ii)may, by addressing a person's violent behaviour, enable or facilitate contact with a child;
(b)sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.
(6)No individual may be required by a contact activity direction—
(a)to undergo medical or psychiatric examination, assessment or treatment;
(b)to take part in mediation.
(7)A court may not on the same occasion—
(a)make a contact activity direction, and
(b)dispose finally of the proceedings as they relate to contact with the child concerned.
(8)Subsection (2) has effect subject to the restrictions in sections 11B and 11E.
(9)In considering whether to make a contact activity direction, the welfare of the child concerned is to be the court's paramount consideration.]
(1)This section applies in proceedings in which the court is considering whether to make provision about contact with a child by making—
(a)a contact order with respect to the child, or
(b)an order varying or discharging a contact order with respect to the child.
(2)The court may make a contact activity direction in connection with that provision about contact.
(3)A contact activity direction is a direction requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned.
(4)The direction is to specify the activity and the person providing the activity.
(5)The activities that may be so required include, in particular—
(a)programmes, classes and counselling or guidance sessions of a kind that—
(i)may assist a person as regards establishing, maintaining or improving contact with a child;
(ii)may, by addressing a person's violent behaviour, enable or facilitate contact with a child;
(b)sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.
(6)No individual may be required by a contact activity direction—
(a)to undergo medical or psychiatric examination, assessment or treatment;
(b)to take part in mediation.
(7)A court may not on the same occasion—
(a)make a contact activity direction, and
(b)dispose finally of the proceedings as they relate to contact with the child concerned.
(8)Subsection (2) has effect subject to the restrictions in sections 11B and 11E.
(9)In considering whether to make a contact activity direction, the welfare of the child concerned is to be the court's paramount consideration.]
8
Residence, contact and other orders with respect to children.
(1)In this Act —
“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
“a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(2)In this Act “a section 8 order” means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.
(3)For the purposes of this Act “family proceedings” means any proceedings—
(a)under the inherent jurisdiction of the High Court in relation to children; and
(b)under the enactments mentioned in subsection (4),but does not include proceedings on an application for leave under section 100(3).
(1)In this Act —
“a contact order” means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a residence order” means an order settling the arrangements to be made as to the person with whom a child is to live; and
“a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(2)In this Act “a section 8 order” means any of the orders mentioned in subsection (1) and any order varying or discharging such an order.
(3)For the purposes of this Act “family proceedings” means any proceedings—
(a)under the inherent jurisdiction of the High Court in relation to children; and
(b)under the enactments mentioned in subsection (4),but does not include proceedings on an application for leave under section 100(3).
49
Abduction of children in care etc.
(1)A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he—
(a)takes a child to whom this section applies away from the responsible person;
(b)keeps such a child away from the responsible person; or
(c)induces, assists or incites such a child to run away or stay away from the responsible person.
(2)This section applies in relation to a child who is—
(a)in care;
(b)the subject of an emergency protection order; or
(c)in police protection,and in this section “the responsible person” means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.
(3)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to bo
(1)A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he—
(a)takes a child to whom this section applies away from the responsible person;
(b)keeps such a child away from the responsible person; or
(c)induces, assists or incites such a child to run away or stay away from the responsible person.
(2)This section applies in relation to a child who is—
(a)in care;
(b)the subject of an emergency protection order; or
(c)in police protection,and in this section “the responsible person” means any person who for the time being has care of him by virtue of the care order, the emergency protection order, or section 46, as the case may be.
(3)A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to bo
(b)have
reasonable cause to suspect that a child who lives, or is found, in their area
is suffering, or is likely to suffer, significant harm,the authority shall
make, or cause to be made, such enquiries as they consider necessary to enable
them to decide whether they should take any action to safeguard or promote the
child’s welfare. F2...
(2)Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.
(3)The enquiries shall, in particular, be directed towards establishing—
(a)whether the authority should make any application to the court, or exercise any of their other powers under this Act [F3or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;
(b)whether, in the case of a child—
(i)with respect to whom an emergency protection order has been made; and
(ii)who is not in accommodation provided by or on behalf of the authority,it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and
(c)whether, in the case of a child who has been taken into police protection, it would be in the child’s best interests for the authority to ask for an application to be made under section 46(7).
(4)Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable—
(a)to obtain access to him; or
(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,unless they are satisfied that they already have sufficient information with respect to him.
(5)Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult the relevant local education authority.
[F4(5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a)ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and
(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.]
(6)Where, in the course of enquiries made under this section—
(a)any officer of the local authority concerned; or
(b)any person authorised by the authority to act on their behalf in connection with those enquiries—
(i)is refused access to the child concerned; or
(ii)is denied information as to his whereabouts,the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.
(7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall—
(a)consider whether it would be appropriate to review the case at a later date; and
(b)if they decide that it would be, determine the date on which that review is to begin.
(8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
(9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.
(10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.
(11)The persons are—
(a)any local authority;
(b)any local education authority;
(c)any local housing authority;
(d)any [F5[F6Local Health Board] , Special Health Authority][F7, Primary Care Trust][F8, National Health Service trust or NHS foundation trust]; and
(e)any person authorised by the Secretary of State for the purposes of this section.
(12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.
(2)Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare.
(3)The enquiries shall, in particular, be directed towards establishing—
(a)whether the authority should make any application to the court, or exercise any of their other powers under this Act [F3or section 11 of the Crime and Disorder Act 1998 (child safety orders)], with respect to the child;
(b)whether, in the case of a child—
(i)with respect to whom an emergency protection order has been made; and
(ii)who is not in accommodation provided by or on behalf of the authority,it would be in the child’s best interests (while an emergency protection order remains in force) for him to be in such accommodation; and
(c)whether, in the case of a child who has been taken into police protection, it would be in the child’s best interests for the authority to ask for an application to be made under section 46(7).
(4)Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable—
(a)to obtain access to him; or
(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,unless they are satisfied that they already have sufficient information with respect to him.
(5)Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child’s education which should be investigated, they shall consult the relevant local education authority.
[F4(5A)For the purposes of making a determination under this section as to the action to be taken with respect to a child, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a)ascertain the child’s wishes and feelings regarding the action to be taken with respect to him; and
(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.]
(6)Where, in the course of enquiries made under this section—
(a)any officer of the local authority concerned; or
(b)any person authorised by the authority to act on their behalf in connection with those enquiries—
(i)is refused access to the child concerned; or
(ii)is denied information as to his whereabouts,the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so.
(7)If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall—
(a)consider whether it would be appropriate to review the case at a later date; and
(b)if they decide that it would be, determine the date on which that review is to begin.
(8)Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).
(9)Where a local authority are conducting enquiries under this section, it shall be the duty of any person mentioned in subsection (11) to assist them with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so.
(10)Subsection (9) does not oblige any person to assist a local authority where doing so would be unreasonable in all the circumstances of the case.
(11)The persons are—
(a)any local authority;
(b)any local education authority;
(c)any local housing authority;
(d)any [F5[F6Local Health Board] , Special Health Authority][F7, Primary Care Trust][F8, National Health Service trust or NHS foundation trust]; and
(e)any person authorised by the Secretary of State for the purposes of this section.
(12)Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place.
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;
(b)in the case of an application made by a local authority—
(i)enquiries are being made with respect to the child under section 47(1)(b); and
(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c)in the case of an application made by an authorised person—
(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii)the applicant is making enquiries with respect to the child’s welfare; and
(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
(2)In this section—
(a)“authorised person” means a person who is an authorised person for the purposes of section 31; and
(b)“a person authorised to seek access” means—
(i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)in the case of an application by an authorised person, that person.
(3)Any person—
(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)purporting to be a person authorised to do so,shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.
(4)While an order under this section (“an emergency protection order”) is in force it—
(a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;
(b)authorises—
(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or
(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and
(c)gives the applicant parental responsibility for the child.
(5)Where an emergency protection order is in force with respect to a child, the applicant—
(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;
(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and
(c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.
(6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to—
(a)the contact which is, or is not, to be allowed between the child and any named person;
(b)the medical or psychiatric examination or other assessment of the child.
(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.
(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be—
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(9)A direction under subsection (6) may be—
(a)given when the emergency protection order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(10)Where an emergency protection order is in force with respect to a child and—
(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or
(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,he shall return the child or (as the case may be) allow him to be removed.
(11)Where he is required by subsection (10) to return the child the applicant shall—
(a)return him to the care of the person from whose care he was removed; or
(b)if that is not reasonably practicable, return him to the care of—
(i)a parent of his;
(ii)any person who is not a parent of his but who has parental responsibility for him; or
(iii)such other person as the applicant (with the agreement of the court) considers appropriate.
(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.
(13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with—
(a)his parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any person with whom he was living immediately before the making of the order;
(d)any person in whose favour a contact order is in force with respect to him;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)any person acting on behalf of any of those persons.
(14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.
(15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(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;
(b)in the case of an application made by a local authority—
(i)enquiries are being made with respect to the child under section 47(1)(b); and
(ii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and that the applicant has reasonable cause to believe that access to the child is required as a matter of urgency; or
(c)in the case of an application made by an authorised person—
(i)the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
(ii)the applicant is making enquiries with respect to the child’s welfare; and
(iii)those enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access and the applicant has reasonable cause to believe that access to the child is required as a matter of urgency.
(2)In this section—
(a)“authorised person” means a person who is an authorised person for the purposes of section 31; and
(b)“a person authorised to seek access” means—
(i)in the case of an application by a local authority, an officer of the local authority or a person authorised by the authority to act on their behalf in connection with the enquiries; or
(ii)in the case of an application by an authorised person, that person.
(3)Any person—
(a)seeking access to a child in connection with enquiries of a kind mentioned in subsection (1); and
(b)purporting to be a person authorised to do so,shall, on being asked to do so, produce some duly authenticated document as evidence that he is such a person.
(4)While an order under this section (“an emergency protection order”) is in force it—
(a)operates as a direction to any person who is in a position to do so to comply with any request to produce the child to the applicant;
(b)authorises—
(i)the removal of the child at any time to accommodation provided by or on behalf of the applicant and his being kept there; or
(ii)the prevention of the child’s removal from any hospital, or other place, in which he was being accommodated immediately before the making of the order; and
(c)gives the applicant parental responsibility for the child.
(5)Where an emergency protection order is in force with respect to a child, the applicant—
(a)shall only exercise the power given by virtue of subsection (4)(b) in order to safeguard the welfare of the child;
(b)shall take, and shall only take, such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child (having regard in particular to the duration of the order); and
(c)shall comply with the requirements of any regulations made by the Secretary of State for the purposes of this subsection.
(6)Where the court makes an emergency protection order, it may give such directions (if any) as it considers appropriate with respect to—
(a)the contact which is, or is not, to be allowed between the child and any named person;
(b)the medical or psychiatric examination or other assessment of the child.
(7)Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.
(8)A direction under subsection (6)(a) may impose conditions and one under subsection (6)(b) may be to the effect that there is to be—
(a)no such examination or assessment; or
(b)no such examination or assessment unless the court directs otherwise.
(9)A direction under subsection (6) may be—
(a)given when the emergency protection order is made or at any time while it is in force; and
(b)varied at any time on the application of any person falling within any class of person prescribed by rules of court for the purposes of this subsection.
(10)Where an emergency protection order is in force with respect to a child and—
(a)the applicant has exercised the power given by subsection (4)(b)(i) but it appears to him that it is safe for the child to be returned; or
(b)the applicant has exercised the power given by subsection (4)(b)(ii) but it appears to him that it is safe for the child to be allowed to be removed from the place in question,he shall return the child or (as the case may be) allow him to be removed.
(11)Where he is required by subsection (10) to return the child the applicant shall—
(a)return him to the care of the person from whose care he was removed; or
(b)if that is not reasonably practicable, return him to the care of—
(i)a parent of his;
(ii)any person who is not a parent of his but who has parental responsibility for him; or
(iii)such other person as the applicant (with the agreement of the court) considers appropriate.
(12)Where the applicant has been required by subsection (10) to return the child, or to allow him to be removed, he may again exercise his powers with respect to the child (at any time while the emergency protection order remains in force) if it appears to him that a change in the circumstances of the case makes it necessary for him to do so.
(13)Where an emergency protection order has been made with respect to a child, the applicant shall, subject to any direction given under subsection (6), allow the child reasonable contact with—
(a)his parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any person with whom he was living immediately before the making of the order;
(d)any person in whose favour a contact order is in force with respect to him;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)any person acting on behalf of any of those persons.
(14)Wherever it is reasonably practicable to do so, an emergency protection order shall name the child; and where it does not name him it shall describe him as clearly as possible.
(15) A person shall be guilty of an offence if he intentionally obstructs any person exercising the power under subsection (4)(b) to remove, or prevent the removal of, a child.
(16)A person guilty of an offence under subsection (15) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Undertakings relating to emergency protection orders.
(1)In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)An undertaking given to a court under subsection (1)—
(a)shall be enforceable as if it were an order of the court, and
(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.
(1)In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)An undertaking given to a court under subsection (1)—
(a)shall be enforceable as if it were an order of the court, and
(b)shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours.
(4)This section has effect without prejudice to the powers of the High Court and county court apart from this section.
(5)In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.
43
Child assessment orders.
(1)On the application of a local authority or authorised person 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)the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b)an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c)it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
(2)In this Act “a child assessment order” means an order under this section.
(3)A court may treat an application under this section as an application for an emergency protection order.
(4)No court shall make a child assessment order if it is satisfied—
(a)that there are grounds for making an emergency protection order with respect to the child; and
(b)that it ought to make such an order rather than a child assessment order.
(5)A child assessment order shall—
(a)specify the date by which the assessment is to begin; and
(b)have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.
(6)Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—
(a)to produce him to such person as may be named in the order; and
(b)to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
(7)A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8)Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.
(9)The child may only be kept away from home—
(a)in accordance with directions specified in the order;
(b)if it is necessary for the purposes of the assessment; and
(c)for such period or periods as may be specified in the order.
(10)Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11)Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—
(a)the child’s parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any other person caring for the child;
(d)any person in whose favour a contact order is in force with respect to the child;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)the child,before the hearing of the application.
(12)Rules of court may make provision as to the circumstances in which—
(a)any of the persons mentioned in subsection (11); or
(b)such other person as may be specified in the rules,may apply to the court for a child assessment order to be varied or discharged.
(13)In this section “authorised person” means a person who is an authorised person for the purposes of section 31.
(1)On the application of a local authority or authorised person 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)the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b)an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm; and
(c)it is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
(2)In this Act “a child assessment order” means an order under this section.
(3)A court may treat an application under this section as an application for an emergency protection order.
(4)No court shall make a child assessment order if it is satisfied—
(a)that there are grounds for making an emergency protection order with respect to the child; and
(b)that it ought to make such an order rather than a child assessment order.
(5)A child assessment order shall—
(a)specify the date by which the assessment is to begin; and
(b)have effect for such period, not exceeding 7 days beginning with that date, as may be specified in the order.
(6)Where a child assessment order is in force with respect to a child it shall be the duty of any person who is in a position to produce the child—
(a)to produce him to such person as may be named in the order; and
(b)to comply with such directions relating to the assessment of the child as the court thinks fit to specify in the order.
(7)A child assessment order authorises any person carrying out the assessment, or any part of the assessment, to do so in accordance with the terms of the order.
(8)Regardless of subsection (7), if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment.
(9)The child may only be kept away from home—
(a)in accordance with directions specified in the order;
(b)if it is necessary for the purposes of the assessment; and
(c)for such period or periods as may be specified in the order.
(10)Where the child is to be kept away from home, the order shall contain such directions as the court thinks fit with regard to the contact that he must be allowed to have with other persons while away from home.
(11)Any person making an application for a child assessment order shall take such steps as are reasonably practicable to ensure that notice of the application is given to—
(a)the child’s parents;
(b)any person who is not a parent of his but who has parental responsibility for him;
(c)any other person caring for the child;
(d)any person in whose favour a contact order is in force with respect to the child;
(e)any person who is allowed to have contact with the child by virtue of an order under section 34; and
(f)the child,before the hearing of the application.
(12)Rules of court may make provision as to the circumstances in which—
(a)any of the persons mentioned in subsection (11); or
(b)such other person as may be specified in the rules,may apply to the court for a child assessment order to be varied or discharged.
(13)In this section “authorised person” means a person who is an authorised person for the purposes of section 31.
Thursday 26 January 2012
the child act / special guardianship orders
http://www.legislation.gov.uk/ukpga/1989/41?view=plain
the child act, section 2 is special guardian ship orders
the child act, section 2 is special guardian ship orders
Getting Ready
we are about to go to appeal, we cant wait wait, we feel very positive about it. we will of course keep you informed. watch this space.
Tuesday 17 January 2012
Saturday 14 January 2012
Appeal against finding of fact in care proceedings. Appeal allowed and findings set aside.
The Court of Appeal considered an appeal by a local authority against findings of fact made by HHJ Finnerty when making an interim care order in respect of S. Subsequently, within the care proceedings and relying on the previous findings of fact, the mother sought declarations that the local authority had breached her and S's ECHR Article 6 and 8 rights. In order to defend this claim the local authority was required to appeal against the judge's findings.
The mother was a heroin addict who was serving a prison sentence when S was born. S was placed with her mother in prison's mother and baby unit.
After an negative assessment of the mother the local authority instituted care proceedings. The day before the hearing the local authority received an email from the prison about aspects of the mother's behaviour including 'prop feeding' of S. The social worker (EB) took no action because the matter was in court the next day. However the first day of the hearing was ineffective and after visiting the prison and after discussions with the relevant governor EB decided that S should be removed immediately under a police protection order.
Magistrates granted an emergency protection order the next day which lasted until the hearing of the ICO. The judge made the ICO but criticised the local authority's conduct. Her judgment included findings that the risks identified were not of such gravity as to justify the immediate removal of S and that the removal of S effectively usurped the authority of the court.
Sir Nicholas Wall P in giving the leading judgment, with which Arden LJ and Wilson LJ agreed, stated that as a matter of policy the Court of Appeal is likely to be sympathetic and supportive of any judge who had to make a finely balanced decision on short notice and often on inadequate information. However this has certain consequences. In this case the judge was deeply critical of the actions of the local authority in removing S but on analysis it turned on a particular decision made in good faith. Therefore in the same way that judges who make a permissible but courageous discretionary decision are entitled to look for support from the appellate court the court itself needs to be very sure of its ground before condemning a local authority or social worker who acted in good faith.
The Court of Appeal found that the judge was wrong to make such critical findings of fact. However it confirmed that otherwise than in wholly exceptional circumstances it is for the court to decide whether or not to remove a child, unfettered by events which effectively curtail its powers. For the local authority to succeed in its appeal the facts would have to be regarded as wholly exceptional. The Court of Appeal found that they were.
The Presidents said that 'this was a classic case of a social worker who was damned if she did and damned if she did not.' If S had been left overnight and she had died or suffered significant harm EB would have been severely criticised. Her decision should be assessed in the same way as a courageous discretionary decision by a judge with whom the court disagreed.
It was significant that EB had not gone to the prison with the intention of separating the mother and S. If she had caused S to be removed knowing or believing that she would be effectively frustrating the mother's resistance to the ICO she could be criticised for usurping the function of the court. In this case S was not being permanently removed. She was removed overnight because EB reasonably believed there was an unacceptable risk of further significant harm.
The Court of Appeal considered that if parties were to make applications for breach of the Human Rights Act 1998 in care proceedings, a practice which it would not encourage, it would be helpful if those cases were to focus on the ECHR when making or refusing to make interim orders. If the judge plainly takes the view that the conduct of the local authority represents a breach of the party's ECHR Article 6 or 8 rights he or she will be able to (a) invite argument there and then and (b) make appropriate findings in the context of the application before the court. Much time and expense, the court said, could thereby be saved.
Summary by Rowena Champion, barrister, Field Court Chambers
__________________________
Case No: B4/2010/1363/PTA+A
Neutral Citation Number: [2010] EWCA Civ 1383
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
Her Honour Judge Finnerty
LS09C05584
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/12/2010
Before:
SIR NICHOLAS WALL THE PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE ARDEN
and
LORD JUSTICE WILSON
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RE S (A CHILD)
(Transcript of the Handed Down Judgment of
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The mother was a heroin addict who was serving a prison sentence when S was born. S was placed with her mother in prison's mother and baby unit.
After an negative assessment of the mother the local authority instituted care proceedings. The day before the hearing the local authority received an email from the prison about aspects of the mother's behaviour including 'prop feeding' of S. The social worker (EB) took no action because the matter was in court the next day. However the first day of the hearing was ineffective and after visiting the prison and after discussions with the relevant governor EB decided that S should be removed immediately under a police protection order.
Magistrates granted an emergency protection order the next day which lasted until the hearing of the ICO. The judge made the ICO but criticised the local authority's conduct. Her judgment included findings that the risks identified were not of such gravity as to justify the immediate removal of S and that the removal of S effectively usurped the authority of the court.
Sir Nicholas Wall P in giving the leading judgment, with which Arden LJ and Wilson LJ agreed, stated that as a matter of policy the Court of Appeal is likely to be sympathetic and supportive of any judge who had to make a finely balanced decision on short notice and often on inadequate information. However this has certain consequences. In this case the judge was deeply critical of the actions of the local authority in removing S but on analysis it turned on a particular decision made in good faith. Therefore in the same way that judges who make a permissible but courageous discretionary decision are entitled to look for support from the appellate court the court itself needs to be very sure of its ground before condemning a local authority or social worker who acted in good faith.
The Court of Appeal found that the judge was wrong to make such critical findings of fact. However it confirmed that otherwise than in wholly exceptional circumstances it is for the court to decide whether or not to remove a child, unfettered by events which effectively curtail its powers. For the local authority to succeed in its appeal the facts would have to be regarded as wholly exceptional. The Court of Appeal found that they were.
The Presidents said that 'this was a classic case of a social worker who was damned if she did and damned if she did not.' If S had been left overnight and she had died or suffered significant harm EB would have been severely criticised. Her decision should be assessed in the same way as a courageous discretionary decision by a judge with whom the court disagreed.
It was significant that EB had not gone to the prison with the intention of separating the mother and S. If she had caused S to be removed knowing or believing that she would be effectively frustrating the mother's resistance to the ICO she could be criticised for usurping the function of the court. In this case S was not being permanently removed. She was removed overnight because EB reasonably believed there was an unacceptable risk of further significant harm.
The Court of Appeal considered that if parties were to make applications for breach of the Human Rights Act 1998 in care proceedings, a practice which it would not encourage, it would be helpful if those cases were to focus on the ECHR when making or refusing to make interim orders. If the judge plainly takes the view that the conduct of the local authority represents a breach of the party's ECHR Article 6 or 8 rights he or she will be able to (a) invite argument there and then and (b) make appropriate findings in the context of the application before the court. Much time and expense, the court said, could thereby be saved.
Summary by Rowena Champion, barrister, Field Court Chambers
__________________________
Case No: B4/2010/1363/PTA+A
Neutral Citation Number: [2010] EWCA Civ 1383
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
Her Honour Judge Finnerty
LS09C05584
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/12/2010
Before:
SIR NICHOLAS WALL THE PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE ARDEN
and
LORD JUSTICE WILSON
- - - - - - - - - - - - - - - - - - - - -
RE S (A CHILD)
(Transcript of the Handed Down Judgment of
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A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Sally Bradley QC and Lindy Armitage (instructed by a Local Authority) for the Appellant
Sarah Singleton QC and Vicki James (instructed by Switalskis) for the Respondent
Guy Swiffen (instructed by Stuart Gordon, Solicitors and Advocates) appeared for the Child's Guardian
Sarah Singleton QC and Vicki James (instructed by Switalskis) for the Respondent
Guy Swiffen (instructed by Stuart Gordon, Solicitors and Advocates) appeared for the Child's Guardian
Hearing dates: 2 November 2010
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Judgment
As Approved by the Court
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown copyright©
Sir Nicholas Wall P:
Introduction (1)1. This application for permission to appeal, and the consequential appeal, arise as a result of a judgment given by Her Honour Judge Finnerty sitting in the Leeds County Court as long ago as 11 December 2009. The judge was (and still is) hearing care proceedings relating to a small female child, whom I will identify only by the initial S. As the proceedings are ongoing, reporting restrictions will be imposed, and nothing must be published with identifies any of the participants in the case, apart from the judge, the local authority and the lawyers.
2. On 11 December 2009 the judge made an Interim Care Order (ICO) in relation to S under section 38 of the Children Act 1989 (the Act). In so doing, however, she made a number of findings of fact which were critical of the local authority. Subsequently, albeit within the care proceedings, S's mother issued proceedings under sections 7(1)(b) and 8(1) of the Human Rights Act 1998 (HRA) in which she sought, inter alia, a declaration, based on the judge's earlier findings, that the local authority had acted in breach of both her and S's ECHR Article 6 and 8 rights.
3. When the local authority sought to defend those proceedings, the judge, in a separate judgment delivered on 6 May 2010, took the view that the local authority, which had not sought to appeal against the ICO, was bound by her previous findings, and that, if it wished to defend the HRA claim, it needed to seek permission to appeal against the findings of fact she had made on 11 December 2009. The Judge, however, refused permission to appeal - hence the application to this court.
4. I confess that when I first read the papers, my reaction was that the HRA claim was misconceived, but that in any event there could be no issue estoppel between a judgment in interim care proceedings and an action brought under HRA. Thus, if the HRA proceedings were to go ahead, the local authority should be at liberty to defend them and to file whatever additional evidence it needed in order to rebut (and thus re-open) the findings made by the judge. If this was right, the appeal was both unnecessary and inappropriate.
5. On analysis, however, and following a helpful discussion with counsel, this assessment turned out to be wrong. Miss Sarah Singleton QC, for the mother, persuaded me that the HRA application was properly made within the care proceedings, and that, pursuant to CPR rule 52.10(2) and the decision of this court in Re S (Minors)[2010] EWCA Civ 421 reported as Re S (Authorising Children's Immediate Removal) [2010] 2 FLR 873 (Re S), this court had jurisdiction to entertain an appeal against Judge Finnerty's judgment of 11 December 2009 even though the local authority did not seek to appeal against the ICO made on that day.
6. We accordingly proceeded to hear the appeal. Although Miss Singleton did not formally concede that permission to appeal should be granted, she took no point on the application being out of time, and we heard argument as though on the substantive appeal. For the avoidance of any doubt, however, I wish to make it clear that I regard the matter as being of considerable importance. I would, accordingly, grant permission to appeal.
Introduction (2) HRA applications in care proceedings
7. As I pointed out during argument, it is trite law that ECHR Articles 6 and 8 are engaged in every application for an ICO particularly where, as here, the local authority seeks the sanction of the court for the removal of a baby from a mother's care. Accordingly, I do not criticise the judge's formulation of the test for the making of such an order (the threshold criteria having rightly been conceded by S's parents). The judge said: -
Introduction (1)1. This application for permission to appeal, and the consequential appeal, arise as a result of a judgment given by Her Honour Judge Finnerty sitting in the Leeds County Court as long ago as 11 December 2009. The judge was (and still is) hearing care proceedings relating to a small female child, whom I will identify only by the initial S. As the proceedings are ongoing, reporting restrictions will be imposed, and nothing must be published with identifies any of the participants in the case, apart from the judge, the local authority and the lawyers.
2. On 11 December 2009 the judge made an Interim Care Order (ICO) in relation to S under section 38 of the Children Act 1989 (the Act). In so doing, however, she made a number of findings of fact which were critical of the local authority. Subsequently, albeit within the care proceedings, S's mother issued proceedings under sections 7(1)(b) and 8(1) of the Human Rights Act 1998 (HRA) in which she sought, inter alia, a declaration, based on the judge's earlier findings, that the local authority had acted in breach of both her and S's ECHR Article 6 and 8 rights.
3. When the local authority sought to defend those proceedings, the judge, in a separate judgment delivered on 6 May 2010, took the view that the local authority, which had not sought to appeal against the ICO, was bound by her previous findings, and that, if it wished to defend the HRA claim, it needed to seek permission to appeal against the findings of fact she had made on 11 December 2009. The Judge, however, refused permission to appeal - hence the application to this court.
4. I confess that when I first read the papers, my reaction was that the HRA claim was misconceived, but that in any event there could be no issue estoppel between a judgment in interim care proceedings and an action brought under HRA. Thus, if the HRA proceedings were to go ahead, the local authority should be at liberty to defend them and to file whatever additional evidence it needed in order to rebut (and thus re-open) the findings made by the judge. If this was right, the appeal was both unnecessary and inappropriate.
5. On analysis, however, and following a helpful discussion with counsel, this assessment turned out to be wrong. Miss Sarah Singleton QC, for the mother, persuaded me that the HRA application was properly made within the care proceedings, and that, pursuant to CPR rule 52.10(2) and the decision of this court in Re S (Minors)[2010] EWCA Civ 421 reported as Re S (Authorising Children's Immediate Removal) [2010] 2 FLR 873 (Re S), this court had jurisdiction to entertain an appeal against Judge Finnerty's judgment of 11 December 2009 even though the local authority did not seek to appeal against the ICO made on that day.
6. We accordingly proceeded to hear the appeal. Although Miss Singleton did not formally concede that permission to appeal should be granted, she took no point on the application being out of time, and we heard argument as though on the substantive appeal. For the avoidance of any doubt, however, I wish to make it clear that I regard the matter as being of considerable importance. I would, accordingly, grant permission to appeal.
Introduction (2) HRA applications in care proceedings
7. As I pointed out during argument, it is trite law that ECHR Articles 6 and 8 are engaged in every application for an ICO particularly where, as here, the local authority seeks the sanction of the court for the removal of a baby from a mother's care. Accordingly, I do not criticise the judge's formulation of the test for the making of such an order (the threshold criteria having rightly been conceded by S's parents). The judge said: -
….The removal of a child at an interim stage is a draconian act which can only be justified where on a proper application of the welfare checklist a child's safety requires such removal pending a final determination of the application for a care order.
8. See also Re S (supra) at paragraph 32 per Wilson LJ. Speaking for myself, however, I prefer the test formulated by His Honour Judge Donald Hamilton and approved by this court both in Re B (Care Proceedings: Interim Care Orders [2009] EWCA Civ 1254, [2010] 1 FLR 1241; and in Re B (interim Care Order) [2010] EWCA Civ 324, [2010] 2 FLR 283. Judge Hamilton had posed the test thus: -
"whether the continued removal of (the child) from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care."
9. The reason I prefer this approach is that it immediately focuses the mind of the Tribunal on ECHR Article 8. If (and it is not a practice which I wish to encourage) parties are to make HRA applications in care proceedings, it would, I think, be helpful if those hearing such cases were to focus on ECHR when making or refusing to make interim orders. Thus if – as here – a judge plainly takes the view that the conduct of the local authority represents a breach or breaches of a party's ECHR Article 6 and 8 rights he or she will; (a) be able to invite argument on the point then and there; and (b) will be able to make appropriate findings in the context of the application before the court. Much time and expense could thereby be saved.
10. Judge Finnerty was faced with the fact that S had been removed from her mother's care and took the view that she had – in effect – no option but to make an ICO. I wish to make it very clear in this judgment that I have considerable sympathy for the position in which the judge found herself. Apart from anything else, her judgment was given – and had to be given - extempore late on a Friday evening. In these circumstances, it would be wrong and unfair to subject the judgment to over-rigorous analysis, or to emphasise semantic points. This is not least, of course, because this court has given itself the luxury of reserving judgment, and has had the benefit of skilful argument from leading counsel on both sides.
11. Furthermore, I would like to make it as clear as possible that this court - as a matter of policy – is likely to be both sympathetic to, and supportive of, any circuit judge or recorder who has had to make a finely balanced decision at short notice, and often on inadequate information.
12. At the same time, any such sympathy and support have, in my judgment, consequential or "knock-on" effects. The judge was deeply critical of the actions of the local authority in removing S from her mother's care. On analysis this turns on a particular decision made in good faith and out of office hours by a social worker whose evidence to the judge was that she felt constrained so to act in order to protect the child, and who did not believe that she was causing anything other then the most temporary separation of mother and child. In my judgment, the case has to be analysed in that context.
13. Thus in the same way that judges or magistrates who make permissible but courageous discretionary decisions are entitled to look for support to an appellate court, the court itself needs to be very sure of its ground before condemning a local authority which, or a social worker who, acts in good faith to protect a child.
Introduction (3) Events since the hearing before the judge14. At the time of the hearing before the judge, the mother was serving a sentence of imprisonment for offences of dishonesty. We were told at the bar that the mother was released on licence in May 2010 and that since 18 September 2010, she has been looking after S. The final hearing of the care proceedings is scheduled for 10 December 2010. The local authority's case, we were told, is that the mother has lapsed and has resumed taking heroin. There was, therefore, a hearing fixed for 12 November 2010 and the local authority was reserving its position (depending, as I understood it on the outcome of drug testing on the mother) as to whether or not it was going to argue before the judge that there should be a further separation.
15. However, by letter from the local authority dated 12 November 2010, the court was informed as follows: -
10. Judge Finnerty was faced with the fact that S had been removed from her mother's care and took the view that she had – in effect – no option but to make an ICO. I wish to make it very clear in this judgment that I have considerable sympathy for the position in which the judge found herself. Apart from anything else, her judgment was given – and had to be given - extempore late on a Friday evening. In these circumstances, it would be wrong and unfair to subject the judgment to over-rigorous analysis, or to emphasise semantic points. This is not least, of course, because this court has given itself the luxury of reserving judgment, and has had the benefit of skilful argument from leading counsel on both sides.
11. Furthermore, I would like to make it as clear as possible that this court - as a matter of policy – is likely to be both sympathetic to, and supportive of, any circuit judge or recorder who has had to make a finely balanced decision at short notice, and often on inadequate information.
12. At the same time, any such sympathy and support have, in my judgment, consequential or "knock-on" effects. The judge was deeply critical of the actions of the local authority in removing S from her mother's care. On analysis this turns on a particular decision made in good faith and out of office hours by a social worker whose evidence to the judge was that she felt constrained so to act in order to protect the child, and who did not believe that she was causing anything other then the most temporary separation of mother and child. In my judgment, the case has to be analysed in that context.
13. Thus in the same way that judges or magistrates who make permissible but courageous discretionary decisions are entitled to look for support to an appellate court, the court itself needs to be very sure of its ground before condemning a local authority which, or a social worker who, acts in good faith to protect a child.
Introduction (3) Events since the hearing before the judge14. At the time of the hearing before the judge, the mother was serving a sentence of imprisonment for offences of dishonesty. We were told at the bar that the mother was released on licence in May 2010 and that since 18 September 2010, she has been looking after S. The final hearing of the care proceedings is scheduled for 10 December 2010. The local authority's case, we were told, is that the mother has lapsed and has resumed taking heroin. There was, therefore, a hearing fixed for 12 November 2010 and the local authority was reserving its position (depending, as I understood it on the outcome of drug testing on the mother) as to whether or not it was going to argue before the judge that there should be a further separation.
15. However, by letter from the local authority dated 12 November 2010, the court was informed as follows: -
"On 9 November 2010, the family's social worker attended at the family home to take (the mother) for a drugs test. He discovered that the family had moved out of the address and another family were moving in. The mother and father did not answer their phone, and did not respond to messages left. As a result the child was reported missing to the Police, who located her at another address in the …. area with her mother. The child was removed and is currently in local authority foster care"
16. Against this background, I wish to make it as clear as I can that this judgment is strictly limited to an analysis of the judge's judgment given on 11 December 2009, and expresses no view of the ultimate merits, which will be a matter for decision on 10 December 2010.
The facts17. The mother and the father originate from the Czech Republic, and came to this country in 1995. They have, altogether, four children, a girl aged 7, a boy of 5, another girl of 3. and S, who was born on 29 August 2009. S was thus coming up to 12 weeks old when she was removed from her mother's care during the evening of 19 November 2009.
18. Unfortunately, the mother has - or has had - an addiction to heroin, and has served sentences of imprisonment for dishonesty. In addition, we were told that when the mother was pregnant with the three year old, there were references made to social services relating to the couple's cramped living conditions, over-chastisement of the children, substance misuse and domestic violence. All three of the oldest children are in the care of the local authority and living apart from their parents.
19. On 5 June 2009 the mother was remanded in custody charged with theft and on 29 June 2009 she was sentenced to a term of 15 months imprisonment, which she was serving in a local prison when S was born. S showed signs of drug withdrawal at birth, and remained in hospital for a fortnight. The local authority, however, decided that it would support the mother and S in the mother and baby unit at the prison, and on her discharge from hospital, S was reunited with her mother in prison.
20. On 22 October 2009, the mother was convicted on a further count of theft, and 9 months were added to the sentence she was already serving. The mother's wish on completing her sentence was to be reunited with her two oldest children (who were living with foster parents) and the local authority agreed to an assessment of the mother, S and her two oldest children to be carried out by a Family Centre.
21. The Centre concluded its assessment on 30 October 2009. Its report was negative. It recommended that the two oldest children should not be returned to their mother's care and that S should be removed, with long term plans apart from their parents being recommended for all the children.
22. On 3 November 2009, the local authority instituted care proceedings in relation to S in the local family proceedings court. It sought an ICO, and 9 November was fixed. That date was subsequently vacated, and the hearing fixed for 19 and 20 November 2009.
23. Unbeknown to the local authority at the time, the mother had (1) been placed "on report" by the prison authorities on 5 November 2009 for "intentionally [failing] to work properly. Or, being required to work, [refusing] to do so"; and (2) more importantly for present purposes, she had been observed "prop feeding" S on a number of occasions. It needs to be remembered, as the evidence to the judge showed, that S was a very small baby, with a weak cry.
24. There are, in our papers, three reports by prison officers of occasions when S had been "prop fed" by her mother. They are as follows: -
The facts17. The mother and the father originate from the Czech Republic, and came to this country in 1995. They have, altogether, four children, a girl aged 7, a boy of 5, another girl of 3. and S, who was born on 29 August 2009. S was thus coming up to 12 weeks old when she was removed from her mother's care during the evening of 19 November 2009.
18. Unfortunately, the mother has - or has had - an addiction to heroin, and has served sentences of imprisonment for dishonesty. In addition, we were told that when the mother was pregnant with the three year old, there were references made to social services relating to the couple's cramped living conditions, over-chastisement of the children, substance misuse and domestic violence. All three of the oldest children are in the care of the local authority and living apart from their parents.
19. On 5 June 2009 the mother was remanded in custody charged with theft and on 29 June 2009 she was sentenced to a term of 15 months imprisonment, which she was serving in a local prison when S was born. S showed signs of drug withdrawal at birth, and remained in hospital for a fortnight. The local authority, however, decided that it would support the mother and S in the mother and baby unit at the prison, and on her discharge from hospital, S was reunited with her mother in prison.
20. On 22 October 2009, the mother was convicted on a further count of theft, and 9 months were added to the sentence she was already serving. The mother's wish on completing her sentence was to be reunited with her two oldest children (who were living with foster parents) and the local authority agreed to an assessment of the mother, S and her two oldest children to be carried out by a Family Centre.
21. The Centre concluded its assessment on 30 October 2009. Its report was negative. It recommended that the two oldest children should not be returned to their mother's care and that S should be removed, with long term plans apart from their parents being recommended for all the children.
22. On 3 November 2009, the local authority instituted care proceedings in relation to S in the local family proceedings court. It sought an ICO, and 9 November was fixed. That date was subsequently vacated, and the hearing fixed for 19 and 20 November 2009.
23. Unbeknown to the local authority at the time, the mother had (1) been placed "on report" by the prison authorities on 5 November 2009 for "intentionally [failing] to work properly. Or, being required to work, [refusing] to do so"; and (2) more importantly for present purposes, she had been observed "prop feeding" S on a number of occasions. It needs to be remembered, as the evidence to the judge showed, that S was a very small baby, with a weak cry.
24. There are, in our papers, three reports by prison officers of occasions when S had been "prop fed" by her mother. They are as follows: -
(1) At 15.00 on 16 November 2009 a prison officer called JH wrote : "On 10 November 2009 (S) was observed laid in her pram with the bottle of milk propped in her mouth with the aid of a blanket. (The mother) was in the kitchen washing up. (S) was seen to start being sick and because she was laid on her back could not remove the sick from her mouth. I immediately picked up (S) and laid her in my arms on her tummy allowing her to continue being sick without choking. Potentially this was a very dangerous situation and had I not been walking past the pram could have resulted in (S) choking.
I spoke to (the mother) who saw me remove (S) from her pram and explained how dangerous this was and she said she would not do it again. Since this incident (the mother) has been warned about this on several occasions by myself SS and PT (Nursery Nurses) and CS [the Health Visitor]. Obviously, she does not see the danger and continues to carry out this very dangerous act despite all the warnings." (Emphases supplied).
(2) At 17.50 on the following day, 17 November 2009 another officer, HS wrote: - "At approx 17.10 hours (S) was in her pram with a baby bottle 'propped' in her mouth. (The mother) was sat on the sofa at the other end of the room and could not observe (S) from where she was. (The mother) has been told on numerous occasions by nursery staff and officers about the dangers of choking." (Emphasis supplied)
(3) At 13.00 hours on 18 November 2009, Officer JH wrote: "At approximately 12.45 hours on 18 November 2009 I looked into (S's) pram and once again (the mother) had propped the bottle on a blanket and was feeding (S) in this way. (S) was not even in sight of (the mother). (The mother) has now taken to turning the pram in order to prevent staff from seeing this. Despite numerous warnings (the mother) continues to carry out this very dangerous and potentially fatal act. (Emphasis supplied)
I spoke to (the mother) who saw me remove (S) from her pram and explained how dangerous this was and she said she would not do it again. Since this incident (the mother) has been warned about this on several occasions by myself SS and PT (Nursery Nurses) and CS [the Health Visitor]. Obviously, she does not see the danger and continues to carry out this very dangerous act despite all the warnings." (Emphases supplied).
(2) At 17.50 on the following day, 17 November 2009 another officer, HS wrote: - "At approx 17.10 hours (S) was in her pram with a baby bottle 'propped' in her mouth. (The mother) was sat on the sofa at the other end of the room and could not observe (S) from where she was. (The mother) has been told on numerous occasions by nursery staff and officers about the dangers of choking." (Emphasis supplied)
(3) At 13.00 hours on 18 November 2009, Officer JH wrote: "At approximately 12.45 hours on 18 November 2009 I looked into (S's) pram and once again (the mother) had propped the bottle on a blanket and was feeding (S) in this way. (S) was not even in sight of (the mother). (The mother) has now taken to turning the pram in order to prevent staff from seeing this. Despite numerous warnings (the mother) continues to carry out this very dangerous and potentially fatal act. (Emphasis supplied)
25. On 18 November 2009 the local authority was informed by Email from the prison (dated that day) not only about the prop feeding but of other aspects of the mother's behaviour in prison. EB, the social worker, immediately took legal advice, but was advised that the matter was in court the following day, and as a result took no action. She told the judge that, in retrospect, she felt she should have gone to the prison on 18 November. In the event, as I shall relate, she went the following day when the first day of the local authority's application for an ICO was ineffective, and it was after a further discussion with the relevant governor of the prison (PH) that she instructed the prison authorities to call the police to separate S from her mother under a police protection order. That is what happened. I propose to set out EB's reasons for taking that course when I describe her evidence to the judge.
The letters from the local authority and the guardian26. On 19 November 2009, EB took with her to the prison a letter from the local authority dated the same day, in which it expressed its grave concern about the recent information it had received from the prison (the Email dated 18 November) which, as I have stated, contained reports relating to earlier dates but which were seen by the local authority social workers for the first time on that day. The local authority's concerns related in particular both to the mother's prop feeding of S and to the delay in the provision by the prison of information to social services. The letter concluded by instructing the prison to contact the police should staff become concerned that S was at immediate risk of harm.
27. The guardian, through solicitors, also faxed a letter dated 19 November to the prison. That letter referred to the governor's Email of 18 December and asked for confirmation whether or not the governor was of the view that the prison was able sufficiently to manage and monitor the level of risk identified.
28. After talking to the governor (PH), EB added to the local authority's letter the following manuscript addition –
The letters from the local authority and the guardian26. On 19 November 2009, EB took with her to the prison a letter from the local authority dated the same day, in which it expressed its grave concern about the recent information it had received from the prison (the Email dated 18 November) which, as I have stated, contained reports relating to earlier dates but which were seen by the local authority social workers for the first time on that day. The local authority's concerns related in particular both to the mother's prop feeding of S and to the delay in the provision by the prison of information to social services. The letter concluded by instructing the prison to contact the police should staff become concerned that S was at immediate risk of harm.
27. The guardian, through solicitors, also faxed a letter dated 19 November to the prison. That letter referred to the governor's Email of 18 December and asked for confirmation whether or not the governor was of the view that the prison was able sufficiently to manage and monitor the level of risk identified.
28. After talking to the governor (PH), EB added to the local authority's letter the following manuscript addition –
"Due to recent information given to the local authority by (the prison) the (local authority) are in favour of separating (S) from (the mother). (PH) has informed (EB) social worker that they are unable to supervise and monitor (the mother's) care of (S) & informed them that (the mother) will have sole care of (S) for long periods of time extending to hours. In light of this (the local authority) have requested that staff at (the prison) to call the Police or request that (S) is taken into police protection. The matter is before Leeds FPC on 20 / 11 / 09 where (the mother) will have the opportunity to contest the making of an ICO (Interim care order)."
29. The addendum was signed by EB and by RT, team manager, at the prison. It is plain to me that at that time EB genuinely anticipated that the ICO application then pending before the family proceedings court would go ahead on 20 November.
The hearing before the justices30. As we now know, there was no hearing before the justices on 19 November, the first of the two days set aside. We have the legal adviser's note of what occurred on the second day (20 November 2009), together with the justices' reasons. The case ceased to be an application for an ICO and became instead an application for an Emergency Protection Order (EPO), which the justices grated until 25 November, when the local authority's application for an ICO was to come before the county court. Speaking for myself, I do not regarded the transformation of the hearing from ICO to EPO as in any way sinister, or in breach of the mother's ECHR Article 6 rights. It appears to have occurred largely because of the limited time available. An EPO can, of course, be heard ex parte and the justices did not hear the mother. As I have already indicated, however, their order was limited in time, and for my part I do not see the EPO (at which both the parents and the child were represented) as a breach of the mother's right to a fair hearing.
31. The justices' reasons contain the following paragraph:
The hearing before the justices30. As we now know, there was no hearing before the justices on 19 November, the first of the two days set aside. We have the legal adviser's note of what occurred on the second day (20 November 2009), together with the justices' reasons. The case ceased to be an application for an ICO and became instead an application for an Emergency Protection Order (EPO), which the justices grated until 25 November, when the local authority's application for an ICO was to come before the county court. Speaking for myself, I do not regarded the transformation of the hearing from ICO to EPO as in any way sinister, or in breach of the mother's ECHR Article 6 rights. It appears to have occurred largely because of the limited time available. An EPO can, of course, be heard ex parte and the justices did not hear the mother. As I have already indicated, however, their order was limited in time, and for my part I do not see the EPO (at which both the parents and the child were represented) as a breach of the mother's right to a fair hearing.
31. The justices' reasons contain the following paragraph:
"We have heard evidence from (EB) who expressed serious concerns regarding information received from the prison that (the mother) was prop feeding (S) and was leaving her unattended. This has occurred on more than one occasion despite warnings by staff. It has been observed that (the mother) is now turning the pram away to prevent staff from observing what is going on. Following a meeting with the Governor about how this risk could be managed, it was explained to the social worker that the prison were unable to provide additional support and supervision to manage this risk. This would mean that both mother and baby would be unsupervised for long periods of time, particularly at night, including feeding time."
32. The view of the justices was that, whilst the order was draconian, they were satisfied that there was reasonable cause to believe that S was likely to suffer significant harm if she was not removed to accommodation provided by the local authority, and, using the language of ECHR Article 8, they were satisfied that "the making of such an order today is a necessary and proportionate response to the current position".
The evidence heard by the judge33. The judge heard oral evidence from HS and SS. HS is a prison officer: PS is a family support worker at a local children's centre, but was seconded to the prison. The judge also heard PH, a governor at the prison, EB the local authority's social worker, and the mother. In addition, she had written statements from EB (2) and the mother (2) . She also had a position statement from the guardian, together with a number of other documents, including the reports from the prison, to the most relevant of which I will refer in due course. Unfortunately, JH, who had observed S being sick, was not available to give evidence
34. HS and SS confirmed that they had seen S being prop fed; they told the judge that the mother had been told not to continue the practice, and that she had promised not to do it again. PH told the judge that she had informed social services about the prop feeding on 18 November. She told the judge in examination in chief: -
The evidence heard by the judge33. The judge heard oral evidence from HS and SS. HS is a prison officer: PS is a family support worker at a local children's centre, but was seconded to the prison. The judge also heard PH, a governor at the prison, EB the local authority's social worker, and the mother. In addition, she had written statements from EB (2) and the mother (2) . She also had a position statement from the guardian, together with a number of other documents, including the reports from the prison, to the most relevant of which I will refer in due course. Unfortunately, JH, who had observed S being sick, was not available to give evidence
34. HS and SS confirmed that they had seen S being prop fed; they told the judge that the mother had been told not to continue the practice, and that she had promised not to do it again. PH told the judge that she had informed social services about the prop feeding on 18 November. She told the judge in examination in chief: -
"Social services were gravely concerned when I informed them on 18 November and they contacted me to say that they'd sought legal advice and based on the fact that they were already in court on the following day for an interim care order proceedings they said that they at that point would take no action given that it was so late on that day and they were already in court the next day, but as the interim care order proceedings on 19 November were adjourned they came in to see me at the prison on that day and I also received a fax from the children's guardian on the same day both asking me to safeguard and guarantee (S's) safety overnight, which was something I told them I couldn't do based on the staffing levels of our mother and baby unit, and at that point we contacted _____ police who came in to action a police protection order. "
35. PH also told the judge that the prison was becoming increasingly concerned at the mother's behaviour and was itself contemplating the separation of mother and child. During PH's evidence, the judge read to her part of the Email PH had sent to the local authority on 18 November, which was in these terms: -
"We were becoming increasingly concerned abut (the mother's) care for (S) on the unit. If the interim care order does not go ahead and (the mother's) behaviour continues in this vein then we may be forced to consider separation at some point anyway, but I will await the outcome of the hearing."
36. The following questions from the judge and answers from PH then occur: -
"Judge: So from your perspective you were waiting for the court to make a decision?"
PH; … because of the rules around mother and baby units, had we made a decision to separate (the mother) from (S) it would've been (a) quite a long winded process, but (b) it would've been based on (the mother's) as well as the relationship between the mother and the child. But obviously the decision to grant (the mother) a place on the unit had been supported by social services, so obviously we were involving them in this process…
Judge; So the information that was being fed though to you from … the prison, the nursery workers and the officers in relation to the prop feeding was not as extreme as the reaction of social services?
PH; That is correct, and it was based on that information that, although we were alarmed by the behaviour and concerned, and as I've said there, if it continued and we weren't able to stop it, then we would be concerned for (S's) welfare and therefore we might have gone down that route. It wasn't something that in our mind caused us to raise in terms of immediate removal.
PH; … because of the rules around mother and baby units, had we made a decision to separate (the mother) from (S) it would've been (a) quite a long winded process, but (b) it would've been based on (the mother's) as well as the relationship between the mother and the child. But obviously the decision to grant (the mother) a place on the unit had been supported by social services, so obviously we were involving them in this process…
Judge; So the information that was being fed though to you from … the prison, the nursery workers and the officers in relation to the prop feeding was not as extreme as the reaction of social services?
PH; That is correct, and it was based on that information that, although we were alarmed by the behaviour and concerned, and as I've said there, if it continued and we weren't able to stop it, then we would be concerned for (S's) welfare and therefore we might have gone down that route. It wasn't something that in our mind caused us to raise in terms of immediate removal.
37. PH confirmed that there could be a space for the mother and S in another unit somewhere in the country and that apart from the prop feeding, the prison authorities had no anxieties about the mother's care of S: indeed, the evidence is that the mother was gentle and loving towards S. However, in cross-examination PH said: -
"Q. So I assume that the person in charge overnight does regular checks, to check everything is…..?
A: ……there is nothing to state that they have to observe the prisoners at any given point during the night. It's considered good practice, but there's nothing to say that they have to do that. It's quite normal for a prisoner in any unit, unless they were on one of these ACCT documents [that is potential suicide or self-harm] to be unobserved throughout the complete overnight period."
A: ……there is nothing to state that they have to observe the prisoners at any given point during the night. It's considered good practice, but there's nothing to say that they have to do that. It's quite normal for a prisoner in any unit, unless they were on one of these ACCT documents [that is potential suicide or self-harm] to be unobserved throughout the complete overnight period."
38. The critical evidence, however, comes from EB, the social worker. She confirmed that she had taken legal advice on 18 November, but confirmed she had been told that because the matter was in court on the following day it would wait until then. Her evidence, as I have already recorded. was that she felt, in retrospect, that she should have gone to the prison on that day.
39. In cross examination of EB by counsel for the father, the following exchange occurs: -
39. In cross examination of EB by counsel for the father, the following exchange occurs: -
"Q. You were not at that stage saying we must find out whether you can look after this child properly overnight, were you?
A: Well, we were saying that. That was why we went to the prison and that was very much also asked of us by the guardian who was very, very anxious about (S's) welfare overnight. So it was not just social care. We conferred with the guardian. She felt the same. We went. We wanted (S) to remain in (the mother's) care overnight. Unfortunately, the information we received was that they couldn't safeguard her, or they couldn't guarantee that she would be safeguarded and therefore we felt that the best interests of (S) would be to be removed.
A: Well, we were saying that. That was why we went to the prison and that was very much also asked of us by the guardian who was very, very anxious about (S's) welfare overnight. So it was not just social care. We conferred with the guardian. She felt the same. We went. We wanted (S) to remain in (the mother's) care overnight. Unfortunately, the information we received was that they couldn't safeguard her, or they couldn't guarantee that she would be safeguarded and therefore we felt that the best interests of (S) would be to be removed.
The judge then intervenes:
Q. Where is the analysis of risk?
A. Again, this is a management decision and I think that a manager would have to be answerable to that. Prop feeding…… you know, the wording on the referrals was that it was a potentially life threatening thing to do.
Q. That was from a prison officer. Those were her words. A prison officer, not a nursery nurse, not anyone trained in child protection. A lay person. The phrase of a lay person was adopted to remove a baby from a mother without any planning whatsoever. Now, as a social worker, how would you assess that when one looks at the welfare of a child?
A. I have to be very honest here that I feel that the prop feeding was very serious and while others may not agree with me, I think the fact that (the mother) had been asked [not?] to do it and had continued to do it quite indicative really of the way that (the mother) has behaved in the past historically with her other children.
Q. Lack of planning?
A. I don't feel that this was a lack of planning. I feel that it was responding to a potentially crisis situation and ensuring her well being overnight."
A. Again, this is a management decision and I think that a manager would have to be answerable to that. Prop feeding…… you know, the wording on the referrals was that it was a potentially life threatening thing to do.
Q. That was from a prison officer. Those were her words. A prison officer, not a nursery nurse, not anyone trained in child protection. A lay person. The phrase of a lay person was adopted to remove a baby from a mother without any planning whatsoever. Now, as a social worker, how would you assess that when one looks at the welfare of a child?
A. I have to be very honest here that I feel that the prop feeding was very serious and while others may not agree with me, I think the fact that (the mother) had been asked [not?] to do it and had continued to do it quite indicative really of the way that (the mother) has behaved in the past historically with her other children.
Q. Lack of planning?
A. I don't feel that this was a lack of planning. I feel that it was responding to a potentially crisis situation and ensuring her well being overnight."
40. When it was put to her that she had blown everything out of proportion, EB's answer was the same:
"I don't think I have, no. I wouldn't want to think that (S) would have been at risk of choking. She may not have choked, but that's because there was somebody to intervene and that may not've been the case overnight and she may well have choked and I would not like to have that on my conscience or to think that I could've taken steps to safeguard a baby and didn't. I do feel she was at risk and I do feel she was at risk of significant harm. So, no, I don't feel it's blown out of proportion.
Once again, the judge intervenes.
Q; That is not, in fact, the basis for a police protection order, risk. So that was your position that you felt she was at risk?
A; No, I think she had already suffered significant harm by the very fact that she was born addicted and has already suffered significant harm being prop fed."
A; No, I think she had already suffered significant harm by the very fact that she was born addicted and has already suffered significant harm being prop fed."
41. The mother's evidence was to the effect that although she had prop fed S, she had not been told that it was dangerous, and her view was that S fed better that way, as she finished her bottle. She had never been told – this was in answer to a question from the judge – that if she prop fed S, the latter would be taken away.
The grounds of appeal42. The question for this court, accordingly, is whether or not, on the facts, the judge was right to express "dismay" at the actions taken by the local authority and to take the view, as she did, that by removing S from her mother on 19 November 2009 the local authority had "effectively usurped the authority of the court". Specifically, as the grounds of appeal argue, was the judge wrong to find: -
The grounds of appeal42. The question for this court, accordingly, is whether or not, on the facts, the judge was right to express "dismay" at the actions taken by the local authority and to take the view, as she did, that by removing S from her mother on 19 November 2009 the local authority had "effectively usurped the authority of the court". Specifically, as the grounds of appeal argue, was the judge wrong to find: -
(1) The Key Social Worker and her Team Manager caused (S) to be removed from her mother because the prison where (S) and her mother were residing on a Mother & Baby Unit could not guarantee "24 hour supervision".
Paragraphs 26, 29 and 30 of the judgment;
(2) (S) was never put at any distress or discomfort or risk by the incidents of prop feeding" save for "the occasion on 10 November".
Paragraph 31 of the judgment;
(3) The Local Authority should have balanced the risks identified against the risk of removing this tiny baby from her primary carer.
.
Paragraph 32 of the judgment;
(4) I am not satisfied on the evidence that the risks identified by the Local Authority were of such gravity as to justify the immediate removal of the child.
Paragraph 32 of the judgment;
(5) I am satisfied and find that those actions [of the Local Authority] effectively usurped the authority of the Court.
Paragraph 33 of the judgment.
Paragraphs 26, 29 and 30 of the judgment;
(2) (S) was never put at any distress or discomfort or risk by the incidents of prop feeding" save for "the occasion on 10 November".
Paragraph 31 of the judgment;
(3) The Local Authority should have balanced the risks identified against the risk of removing this tiny baby from her primary carer.
.
Paragraph 32 of the judgment;
(4) I am not satisfied on the evidence that the risks identified by the Local Authority were of such gravity as to justify the immediate removal of the child.
Paragraph 32 of the judgment;
(5) I am satisfied and find that those actions [of the Local Authority] effectively usurped the authority of the Court.
Paragraph 33 of the judgment.
There was a sixth ground of appeal on which we did not hear argument and which I will discuss when I have dealt with grounds (1) to (5)
The case for the local authority43. I propose to take each of the grounds set out in paragraph 42 above in turn. For ease of reference, I will repeat the ground before setting out the local authority's response:
The case for the local authority43. I propose to take each of the grounds set out in paragraph 42 above in turn. For ease of reference, I will repeat the ground before setting out the local authority's response:
"(1) The Key Social Worker and her Team Manager caused (S) to be removed from her mother because the prison where (S) and her mother were residing on a Mother & Baby Unit could not guarantee "24 hour supervision".
44. The local authority acknowledges that this is a serious finding. However, it submits that it is a finding which has no foundation in the evidence. Mrs Bradley QC on its behalf submits that the local authority's evidence to the judge was clear. It did not seek 24 hour supervision of the mother and S. It asked the prison, on 19 November 2009 if "additional supervision" could be put into the mother and baby unit to "ensure S's wellbeing immediately". Furthermore, Mrs. Bradley argues, the local authority had been made aware that the mother and S would be without any supervision at all for lengthy periods. It was that concern, she argues. rather than the absence of 24 hour supervision which triggered the decision to request a Police Protection Order (PPO).. In short, the local authority's anxiety was that the mother and S could have been unsupervised for up to 12 hours if the PPO had not been made.
45. The second ground of appeal criticises the judge's finding that: -
45. The second ground of appeal criticises the judge's finding that: -
(2) S was never put at any distress or discomfort or risk by the incidents of prop feeding" save for "the occasion on 10th November".
46. As to this, Mrs. Bradley points to the evidence from the prison staff relating to incidents of prop feeding which I have set out at paragraph 24 above. She submits that there is nothing within the judgment which suggests that the evidence of the prison staff was rejected by the judge. She also relies on the fact that throughout the evidence there was never any challenge made to the suggestion that prop feeding, per se, was an unsafe practice which posed a risk to infants. It cannot therefore be correct, she argues. to state that there was no risk attached to the incidents of prop feedings on days other than 10 November 2009. The finding is, Mrs. Bradley argues, simply wrong. Prop feeding was an unsafe practice which posed a risk to S. Indeed the judge seemed to accept, in the following paragraph that such a practice did pose a risk by her description of the practice as "wholly inappropriate".
47. The third ground addressed the judge's finding that:
47. The third ground addressed the judge's finding that:
(3) the Local Authority should have balanced the risks identified against the risk of removing this tiny baby from her primary carer
48. As to this, Mrs. Bradley argued that the evidence of EB made clear that the events of 18, 19 and 20 November 2009 were prompted by the local authority examining the risks posed to S by the knowledge of the repeated incidents of the unsafe practice of prop feeding. She submitted that the attempt to ascertain whether adequate supervision could be provided and the wish to ensure that S could remain on the mother and baby unit speaks very clearly of the local authority balancing the need to keep S safe with the preferred course of her remaining with the mother whilst proceedings were pending. In support of this argument, Mrs Bradley relied on the passages from the transcript of EB's evidence.
49. Ground 4 related to the judge saying: -
49. Ground 4 related to the judge saying: -
"I am not satisfied on the evidence that the risks identified by the Local Authority were of such gravity as to justify the immediate removal of the child."
50. As to this, Mrs Bradley submitted that there was a body of evidence from the governor of the prison and from social services that S was at risk remaining in the care of her mother on the mother and baby unit. She summarised that evidence by pointing to (1) the incidents of prop feeding per se; (2) the incident on 10 November 2009 when S was seen to choke; (3) the fact that the mother had been told on more than one occasion that prop feeding was dangerous, yet she persisted in exposing S to the practice; (4) the knowledge that the prison could not provide adequate supervision so as to guarantee S's safety overnight; (5) the information from the prison that there had been an increasing concern about the care being afforded to S by the mother whilst on the mother and baby unit; (6) the fact that the prison had previously expressed concerns that the mother was not prepared to follow advice and had shown a disinclination to adhere to prison rules and regulations; and (7) the evidence from the prison that it was quite normal for a prisoner in any unit to be unobserved throughout the complete overnight period and that S could be alone with the mother for approximately 12 hours overnight. Mrs. Bradley repeated that the issue for the local authority was the immediate safety of S. The risks, she argued, were manifest. Having explored the prospect of managing the risks the position, she submitted, was clearly stated to the local authority by the prison; S's safety could not be guaranteed. It followed, she argued, that the judge's finding was flawed and had no evidential basis.
51. Finally, Mrs Bradley addressed the judge's finding that:
51. Finally, Mrs Bradley addressed the judge's finding that:
"I am satisfied and find that those actions [of the Local Authority] effectively usurped the authority of the Court."
52. Mrs Bradley denied that this was the case. Rather, she argued, a set of circumstances had arisen whereby issues of safety had demanded that the local authority act to protect S. It had never been the intention of the local authority to handicap the mother in her challenge to the local authority, hence the manuscript addendum to the letter of 19 November 2009 (which I have set out at paragraph 28 above) where it was expected that the mother could indeed challenge the removal of S on 20 November 2009.
53. Mrs Bradley submitted that this was a profoundly serious finding which implied either that the local authority had made its decision to remove S in a deliberate and calculated manner in order to restrict the power of the court, or that the decision to remove was wholly unjustified and outside the ambit of what was reasonable or permissible.
54. Mrs. Bradley accepted that it might have been the case that the family proceedings court could have concluded that if there had still been a place on the mother and baby unit, and if the prison had agreed that the mother could return to the mother and baby unit; and if there had been a higher level of supervision on the mother and baby unit, then the preferred course would have been not to separate the mother and S pending the final hearing of the care proceedings. However, it was her submission that the circumstances which faced the court had not been engineered or manufactured by the local authority. Such a theory was never alleged against it. The circumstances had been brought about by the local authority receiving child protection information on 18 November 2009 and acting responsibly and transparently on 19 November 2009. The finding was thus misconceived, Mrs. Bradley argued.
The case for the mother 55. The case for the mother was skilfully advanced by Miss Singleton. She accepted that prop feeding was - in the words of her skeleton argument – "a poor, potentially dangerous and inappropriate childcare practice". However, her submission was that it did not, in this case, on any basis justify the separation of the mother and S, not least because, in all other regards, the mother was caring well for S. Miss Singleton also complained that the local authority compounded its misconduct by refusing to support the mother's attempts at reunification in the mother and baby unit.
56. Miss Singleton also submitted that the local authority's argument that it was simply concerned with the position overnight was specious. The mother's primary submission was that the term "24 hour supervision" could conveniently be attached to what was in fact being sought from the prison overnight on 19 November. The fact that the local authority was not intending or meaning a regime of constant scrutiny did not dilute the force of the finding that the regime in fact wanted – conveniently labelled 24 hour supervision – was neither necessary nor reasonable; nor was its absence a justification for separation at all – let alone an emergency separation.
57. Miss Singleton also pointed out that on the judge's findings of fact the local authority's case, at its highest, involved only one observation of S (itself adduced by way of hearsay) suffering discomfort or distress as a result of being prop fed.
58. The judge was right, Miss Singleton submitted, to find that the local authority had not carried out an appropriate balancing exercise or undertaken any planning. The judge had in effect found, and been right to find, that an effective balancing exercise between the harm to be done on the one hand by separation at all - and precipitate separation in particular - and, on the other, the risk of the mother ignoring a direct prohibition upon prop feeding, reinforced by information that such a practice would inevitably result in separation , would not and could not have resulted in a determination that such a separation was necessary.
59. It was the judge, Miss Singleton observed. who had asked the governor about the positive Board reports. The local authority ignored that evidence. The mother's other breaches of prison rules were immaterial to the issue. The judge had conducted the appropriate balancing exercise and found that removal was not justified. Hers was the right approach.
60. The judge had been right, Miss Singleton argued, to find that the local authority had usurped the authority of the court. It presented the family proceedings court with a fait accompli. Once a separation had been effected and the opportunity for S to remain with her mother lost, the court lost its power to refuse to make an ICO. In essence, therefore, whatever the primary intention of the local authority, the effect of its action was to usurp the authority of the court, and the judge had been right so to find.
61. Miss Singleton also argued that when the court was dealing with an ICO, the approval of the court to the local authority's care plan ought necessarily to carry more power and influence. In such circumstances, as she put it, responsibility for the child and her welfare rested principally in the hinterland between parental responsibility on the one hand and administrative responsibility on the other – the hinterland being the areas where the court holds control. - see Re F [2010] EWCA Civ 431.Thus, she submitted, the power of the court to bring about a change in care planning under interim orders is necessarily greater than under final orders when the court's alternatives are limited to permitting the lead parental role to be taken either by the local authority or by the parent.
62. In oral submissions, Miss Singleton sought to demonstrate the inappropriateness of the local authority's behaviour by posing the rhetorical question: how many children are removed from their mothers because they are prop fed? Her basic submission was very simple. The judge had been fully entitled to make all the findings of fact which she had made, and the local authority had not only over-reacted by separating mother and child, but had breached both the letter and spirit of the Act and the relevant authorities in so doing. The evidence was that, prop feeding apart, no possible criticism could be made of the mother's care of S: indeed, there was evidence from the prison that she was gentle with S and that, generally, there were no other concerns about her care of S. Furthermore, the mother had never been told that if she went on prop feeding, S would be removed, and there was no reason to disbelieve her evidence that if she had been given such a warning, she would have heeded it. The failure to support the mother's application for an immediate restoration of her place with S in the mother and baby unit of the prison or some other available unit in another women's prison had compounded the error.
The case for the father and for the guardian63. Although he did not appear before us, the father put in a skeleton argument supporting the stance taken by the mother. He laid particular emphasis upon his belief that the local authority had given the judge and the parties the clear impression that they would be planning to reunite mother and baby pending the final determination of the care proceedings.
64. The guardian did appear before us by counsel. Whilst anxious to defend her own position, and whilst expressing some anxieties at the conduct of the social worker and team manager, the guardian broadly supported the stance taken by the local authority.
Discussion65. I have to say at once that I do not accept Miss Singleton's submission that there is a dichotomy between the role and influence of the court at the interim and final stages of care proceedings. I accept that they are different stages of the proceedings, to which different criteria apply. The question, however, for this court remains in my judgment, whether or not the judge was right to express the criticisms she did of the decision taken by EB on the evening on 19 November, and to make findings of fact based on those criticisms.
66. It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is for good reason, usually a judicial as opposed to an administrative decision. The court is the parent's safeguard against arbitrary or inappropriate action by a local authority. This in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Judge Finnerty's view that both she and the FPC were – inappropriately - being presented with a fait accompli.
67. For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional. Had the justices, for example, been in a position to start the case on 19 November 2009, the local authority could and should have informed the court of the Email received on the previous day. In these circumstances, it is, at the lowest, arguable that steps could have been taken to protect S overnight without separating her from her mother.
68. In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be "wholly exceptional".
69. Although we are not directly concerned with whether or not the local authority's actions constituted a breach of the rights of the mother and S under ECHR Articles 6 and 8 it is, I think, nonetheless salutary to remind myself that ECHR Articles 6 and 8 rights are enjoyed by Everybody (my emphasis). The facts that this mother is a Czech Roma, has used heroin and was in prison for offences of dishonesty at the material time are immaterial. She is a human being. The corollary is equally obvious. Everybody includes S. S has both a right not to be subjected to significant harm (or the likelihood of it), and a right not to be separated from her mother unless her welfare demands that such a separation takes place. I also remind myself that the mother's rights under ECHR 8 are qualified, There would, accordingly, be no breach of ECHR Article 8 if the local authority's action in removing S falls within ECHR Article 8.2.
70. The critical question, however, was whether or not the judge was right to make the findings identified in paragraph 42 above, and now challenged by the local authority. She was plainly right to make an ICO, albeit that her power to do so was, effectively, circumscribed by events.
71. I have not found this an easy matter to resolve. In my judgment, however, this appeal succeeds for the reason at which I hinted in paragraphs 12 and 13 above. EB, in my judgment, was placed in a very difficult position. On the one hand are the considerations which weighed with the judge, and which I have already set out. On the other was the perceived need to protect S from harm. In my judgment this is a classic case of a social worker who is damned if she does, and could equally have been damned if she did not.
72. The matter can be tested by asking a very simple question. What would an impartial observer be saying if EB had left S with the mother in prison overnight, and she had died, or suffered significant harm through being prop fed? I think the answer is obvious. EB would have been severely criticised for taking an unwarranted risk with S's safety. It is for this reason, in my judgment, that this is pre-eminently a case of a social worker being damned if she does, and damned if she does not.
73. It is not, however, necessary to put the matter in such dramatic terms. In my judgment, EB's decision to separate S from her mother's care falls to be assessed in the same way that I would assess a courageous discretionary decision made by a judge with which I disagreed. EB was faced with a very difficult choice. Did she act or did she not? Whatever she did was liable to be attacked. In my judgment, she cannot be properly criticised for acting as she did
74. In EH v London Borough of Greenwich, AA and A (Children) [2010] EWCA Civ 344. [2010]2 FLR 661 at paragraph 109, I said: -
53. Mrs Bradley submitted that this was a profoundly serious finding which implied either that the local authority had made its decision to remove S in a deliberate and calculated manner in order to restrict the power of the court, or that the decision to remove was wholly unjustified and outside the ambit of what was reasonable or permissible.
54. Mrs. Bradley accepted that it might have been the case that the family proceedings court could have concluded that if there had still been a place on the mother and baby unit, and if the prison had agreed that the mother could return to the mother and baby unit; and if there had been a higher level of supervision on the mother and baby unit, then the preferred course would have been not to separate the mother and S pending the final hearing of the care proceedings. However, it was her submission that the circumstances which faced the court had not been engineered or manufactured by the local authority. Such a theory was never alleged against it. The circumstances had been brought about by the local authority receiving child protection information on 18 November 2009 and acting responsibly and transparently on 19 November 2009. The finding was thus misconceived, Mrs. Bradley argued.
The case for the mother 55. The case for the mother was skilfully advanced by Miss Singleton. She accepted that prop feeding was - in the words of her skeleton argument – "a poor, potentially dangerous and inappropriate childcare practice". However, her submission was that it did not, in this case, on any basis justify the separation of the mother and S, not least because, in all other regards, the mother was caring well for S. Miss Singleton also complained that the local authority compounded its misconduct by refusing to support the mother's attempts at reunification in the mother and baby unit.
56. Miss Singleton also submitted that the local authority's argument that it was simply concerned with the position overnight was specious. The mother's primary submission was that the term "24 hour supervision" could conveniently be attached to what was in fact being sought from the prison overnight on 19 November. The fact that the local authority was not intending or meaning a regime of constant scrutiny did not dilute the force of the finding that the regime in fact wanted – conveniently labelled 24 hour supervision – was neither necessary nor reasonable; nor was its absence a justification for separation at all – let alone an emergency separation.
57. Miss Singleton also pointed out that on the judge's findings of fact the local authority's case, at its highest, involved only one observation of S (itself adduced by way of hearsay) suffering discomfort or distress as a result of being prop fed.
58. The judge was right, Miss Singleton submitted, to find that the local authority had not carried out an appropriate balancing exercise or undertaken any planning. The judge had in effect found, and been right to find, that an effective balancing exercise between the harm to be done on the one hand by separation at all - and precipitate separation in particular - and, on the other, the risk of the mother ignoring a direct prohibition upon prop feeding, reinforced by information that such a practice would inevitably result in separation , would not and could not have resulted in a determination that such a separation was necessary.
59. It was the judge, Miss Singleton observed. who had asked the governor about the positive Board reports. The local authority ignored that evidence. The mother's other breaches of prison rules were immaterial to the issue. The judge had conducted the appropriate balancing exercise and found that removal was not justified. Hers was the right approach.
60. The judge had been right, Miss Singleton argued, to find that the local authority had usurped the authority of the court. It presented the family proceedings court with a fait accompli. Once a separation had been effected and the opportunity for S to remain with her mother lost, the court lost its power to refuse to make an ICO. In essence, therefore, whatever the primary intention of the local authority, the effect of its action was to usurp the authority of the court, and the judge had been right so to find.
61. Miss Singleton also argued that when the court was dealing with an ICO, the approval of the court to the local authority's care plan ought necessarily to carry more power and influence. In such circumstances, as she put it, responsibility for the child and her welfare rested principally in the hinterland between parental responsibility on the one hand and administrative responsibility on the other – the hinterland being the areas where the court holds control. - see Re F [2010] EWCA Civ 431.Thus, she submitted, the power of the court to bring about a change in care planning under interim orders is necessarily greater than under final orders when the court's alternatives are limited to permitting the lead parental role to be taken either by the local authority or by the parent.
62. In oral submissions, Miss Singleton sought to demonstrate the inappropriateness of the local authority's behaviour by posing the rhetorical question: how many children are removed from their mothers because they are prop fed? Her basic submission was very simple. The judge had been fully entitled to make all the findings of fact which she had made, and the local authority had not only over-reacted by separating mother and child, but had breached both the letter and spirit of the Act and the relevant authorities in so doing. The evidence was that, prop feeding apart, no possible criticism could be made of the mother's care of S: indeed, there was evidence from the prison that she was gentle with S and that, generally, there were no other concerns about her care of S. Furthermore, the mother had never been told that if she went on prop feeding, S would be removed, and there was no reason to disbelieve her evidence that if she had been given such a warning, she would have heeded it. The failure to support the mother's application for an immediate restoration of her place with S in the mother and baby unit of the prison or some other available unit in another women's prison had compounded the error.
The case for the father and for the guardian63. Although he did not appear before us, the father put in a skeleton argument supporting the stance taken by the mother. He laid particular emphasis upon his belief that the local authority had given the judge and the parties the clear impression that they would be planning to reunite mother and baby pending the final determination of the care proceedings.
64. The guardian did appear before us by counsel. Whilst anxious to defend her own position, and whilst expressing some anxieties at the conduct of the social worker and team manager, the guardian broadly supported the stance taken by the local authority.
Discussion65. I have to say at once that I do not accept Miss Singleton's submission that there is a dichotomy between the role and influence of the court at the interim and final stages of care proceedings. I accept that they are different stages of the proceedings, to which different criteria apply. The question, however, for this court remains in my judgment, whether or not the judge was right to express the criticisms she did of the decision taken by EB on the evening on 19 November, and to make findings of fact based on those criticisms.
66. It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is for good reason, usually a judicial as opposed to an administrative decision. The court is the parent's safeguard against arbitrary or inappropriate action by a local authority. This in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Judge Finnerty's view that both she and the FPC were – inappropriately - being presented with a fait accompli.
67. For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional. Had the justices, for example, been in a position to start the case on 19 November 2009, the local authority could and should have informed the court of the Email received on the previous day. In these circumstances, it is, at the lowest, arguable that steps could have been taken to protect S overnight without separating her from her mother.
68. In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be "wholly exceptional".
69. Although we are not directly concerned with whether or not the local authority's actions constituted a breach of the rights of the mother and S under ECHR Articles 6 and 8 it is, I think, nonetheless salutary to remind myself that ECHR Articles 6 and 8 rights are enjoyed by Everybody (my emphasis). The facts that this mother is a Czech Roma, has used heroin and was in prison for offences of dishonesty at the material time are immaterial. She is a human being. The corollary is equally obvious. Everybody includes S. S has both a right not to be subjected to significant harm (or the likelihood of it), and a right not to be separated from her mother unless her welfare demands that such a separation takes place. I also remind myself that the mother's rights under ECHR 8 are qualified, There would, accordingly, be no breach of ECHR Article 8 if the local authority's action in removing S falls within ECHR Article 8.2.
70. The critical question, however, was whether or not the judge was right to make the findings identified in paragraph 42 above, and now challenged by the local authority. She was plainly right to make an ICO, albeit that her power to do so was, effectively, circumscribed by events.
71. I have not found this an easy matter to resolve. In my judgment, however, this appeal succeeds for the reason at which I hinted in paragraphs 12 and 13 above. EB, in my judgment, was placed in a very difficult position. On the one hand are the considerations which weighed with the judge, and which I have already set out. On the other was the perceived need to protect S from harm. In my judgment this is a classic case of a social worker who is damned if she does, and could equally have been damned if she did not.
72. The matter can be tested by asking a very simple question. What would an impartial observer be saying if EB had left S with the mother in prison overnight, and she had died, or suffered significant harm through being prop fed? I think the answer is obvious. EB would have been severely criticised for taking an unwarranted risk with S's safety. It is for this reason, in my judgment, that this is pre-eminently a case of a social worker being damned if she does, and damned if she does not.
73. It is not, however, necessary to put the matter in such dramatic terms. In my judgment, EB's decision to separate S from her mother's care falls to be assessed in the same way that I would assess a courageous discretionary decision made by a judge with which I disagreed. EB was faced with a very difficult choice. Did she act or did she not? Whatever she did was liable to be attacked. In my judgment, she cannot be properly criticised for acting as she did
74. In EH v London Borough of Greenwich, AA and A (Children) [2010] EWCA Civ 344. [2010]2 FLR 661 at paragraph 109, I said: -
"I yield to nobody in my appreciation of the difficult tasks which social workers are called upon to undertake and the pressures under which they are constrained to work. I am very conscious of the criticism that social workers are damned if they do and damned if they do not. At the same time, their duties under Parts III and IV of the Children Act in care proceedings are plain. Their aim should be to unite families rather than to separate them."
75. To my mind it is significant that EB went to the prison with no intention of separating mother and child. It was put to her by counsel that she had gone to the prison to investigate the allegations of prop feeding, She agreed. It was then put to her that there was no indication of any plan to separate S from her mother overnight at that point. She told the judge: -
"No, we went to the prison really to see if we could safeguard her and we went very much with the view that we wanted S to stay with (the mother). That was part of the reason that we wrote that letter to ask for additional support to be put in place. Unfortunately, because they couldn't guarantee her safety we were very concerned and, again, a management decision was made by two senior managers that it would have to be that she'd be removed to ensure that she wasn't prop fed overnight when there was limited supervision."
76. In my judgment, these considerations are very important, and distinguish the case from - say - Re F (Placement Order) [2008] EWCA Civ 439, [2009] 2 FLR, 550, where all three members of this court were highly critical of a local authority which, although believing that it was acting in the best interests of a child, nonetheless took a deliberate decision to place the child in question for adoption, thereby frustrating a father's application to set aide the placement order made earlier in relation to the child.
77. Thus, in my judgment, if EB had gone to the prison and had caused S to be removed from her mother's care knowing or even believing that by so doing she would effectively frustrate the mother's resistance to the prospective ICO, EB could indeed be criticised on the basis that she had usurped the function of the court.
78. Miss Singleton asked rhetorically: how many children have been removed because their mothers have prop fed them? It is a good advocate's question, if "removal" means permanent removal. Even then, the answer may be: if a parent persistently prop feeds a child, and continues to do so even though he or she has been told to stop the practice, the child will need to be removed.
79. However, in the context of this case, the question is. in my judgment, the wrong one. S was not being permanently removed. She was being removed overnight – as EB believed - because of what was perceived by EB – and in my judgment reasonably perceived – as an unacceptable risk of further significant harm..
80. I therefore regard the circumstances as wholly exceptional. Of course, in an ideal world it could be argued that the local authority should have made itself aware much earlier on that the supervision of the mother and S in prison was inadequate; and that EB should have reasoned with the mother and told her in terms that if she prop fed again, S would be removed. The evidence, however, is that the information did not come to the local authority's attention until 18 November, and in my judgment it was entitled to rely on the prison up until that time. Had EB been able to talk to the mother (as to which there was no evidence, but for present purposes I am prepared to assume was possible) there can be no guarantee that the mother would have heeded what she said. She had, on the evidence, promised JH that she would not prop feed again (see paragraph 24(1) above). On any view, in my judgment, a hypothetical promise by the mother not to prop feed on pain of removal would not have been sufficient to render EB's actions unreasonable.
81. It follows, in my judgment, that, for these reasons and for the reasons Mrs. Bradley advances, and on the evidence available to her, the judge was wrong to make the findings she did. I would set those findings aside, whilst leaving the ICO, which was rightly made, in place.
The additional ground in the Grounds of Appeal82. The grounds of appeal also include a criticism by the judge that the local authority gave her the "clear impression" on 11 December 2009 that it was planning to re-unite mother and baby pending the final determination of the care proceedings. The local authority argues that such an "impression" was not a reflection of the local authority's true position.
83. We did not hear argument on this point because it seemed to us that although the judge was indeed under such an impression; (a) it was not in December 2009 in the local authority's power to "re-unite mother and baby pending the determination of the care proceedings" and; (b) the proposition that it was proposing such an outcome is not an accurate reflection of what junior counsel for the local authority told the judge.
84. We have the advantage of a transcript of what occurred, and it is clear that, at the conclusion of the evidence and before submissions, the judge made plain her dissatisfaction with the local authority's conduct, and made it equally clear that she would not have approved a care plan for the removal of S from her mother's care. Junior counsel for the local authority was then granted a short adjournment to take instructions, in the judge's words: "so that you can inform me whether I am correct in my conclusion that there is nowhere for this court to go other than to approve a care plan that this child remains separate from the mother".
85. When the court resumed, counsel made the point that one of the difficulties faced by the local authority in S being in her mother's care was the Placement with Parent Regulations. He then said: -
77. Thus, in my judgment, if EB had gone to the prison and had caused S to be removed from her mother's care knowing or even believing that by so doing she would effectively frustrate the mother's resistance to the prospective ICO, EB could indeed be criticised on the basis that she had usurped the function of the court.
78. Miss Singleton asked rhetorically: how many children have been removed because their mothers have prop fed them? It is a good advocate's question, if "removal" means permanent removal. Even then, the answer may be: if a parent persistently prop feeds a child, and continues to do so even though he or she has been told to stop the practice, the child will need to be removed.
79. However, in the context of this case, the question is. in my judgment, the wrong one. S was not being permanently removed. She was being removed overnight – as EB believed - because of what was perceived by EB – and in my judgment reasonably perceived – as an unacceptable risk of further significant harm..
80. I therefore regard the circumstances as wholly exceptional. Of course, in an ideal world it could be argued that the local authority should have made itself aware much earlier on that the supervision of the mother and S in prison was inadequate; and that EB should have reasoned with the mother and told her in terms that if she prop fed again, S would be removed. The evidence, however, is that the information did not come to the local authority's attention until 18 November, and in my judgment it was entitled to rely on the prison up until that time. Had EB been able to talk to the mother (as to which there was no evidence, but for present purposes I am prepared to assume was possible) there can be no guarantee that the mother would have heeded what she said. She had, on the evidence, promised JH that she would not prop feed again (see paragraph 24(1) above). On any view, in my judgment, a hypothetical promise by the mother not to prop feed on pain of removal would not have been sufficient to render EB's actions unreasonable.
81. It follows, in my judgment, that, for these reasons and for the reasons Mrs. Bradley advances, and on the evidence available to her, the judge was wrong to make the findings she did. I would set those findings aside, whilst leaving the ICO, which was rightly made, in place.
The additional ground in the Grounds of Appeal82. The grounds of appeal also include a criticism by the judge that the local authority gave her the "clear impression" on 11 December 2009 that it was planning to re-unite mother and baby pending the final determination of the care proceedings. The local authority argues that such an "impression" was not a reflection of the local authority's true position.
83. We did not hear argument on this point because it seemed to us that although the judge was indeed under such an impression; (a) it was not in December 2009 in the local authority's power to "re-unite mother and baby pending the determination of the care proceedings" and; (b) the proposition that it was proposing such an outcome is not an accurate reflection of what junior counsel for the local authority told the judge.
84. We have the advantage of a transcript of what occurred, and it is clear that, at the conclusion of the evidence and before submissions, the judge made plain her dissatisfaction with the local authority's conduct, and made it equally clear that she would not have approved a care plan for the removal of S from her mother's care. Junior counsel for the local authority was then granted a short adjournment to take instructions, in the judge's words: "so that you can inform me whether I am correct in my conclusion that there is nowhere for this court to go other than to approve a care plan that this child remains separate from the mother".
85. When the court resumed, counsel made the point that one of the difficulties faced by the local authority in S being in her mother's care was the Placement with Parent Regulations. He then said: -
"What is being suggested by the local authority is that this matter is stood down part heard today, that ….. before the matter is next to come back on (11) December, that we put a plan together with regard to an evaluation of mother's understanding of the danger of prop feeding and proper methods of feeding……. It is possible, if we come up with a plan for that evaluation that it may be that the evaluation of the mother's care, of feeding of (S) could take place during the day at maybe (the prison). I do not know, we would have to make enquiries with (the prison). But if that took place during the day then placement with parent regulations would not have to be signed off. "
86. Later, counsel says that the local authority will produce an interim care plan for the adjourned hearing, and adds: -
"In relation to, bearing in mind your honour's comments, what they could accommodate eventually to get to placing (S) in a signed off placement with parent regulations, which is their problem." (Emphasis supplied)
87. In my judgment. what counsel was saying was plain enough. There was to be a further assessment of the mother. Depending on the outcome of that assessment it might be possible to re-unite mother and child eventually. If the judge was under the impression that the local authority was planning to reunite the mother and S in prison, she was mistaken.
88. In my judgment, the matter is put beyond doubt when counsel for the mother intervenes to ask for clarification of what the local authority intends to do. She wanted to know "whether they are proposing that the child is taken to the prison daily and also who is going to carry out the assessment". Counsel for the local authority replies that it is the social worker is to carry out the assessment, and that the local authority accepts no criticism of "actual social work assessments from this social worker or this team".
89. Although counsel for the local authority goes on to say "… it will be the position of the local authority to put a proposal forward which finds acceptance from everybody" it is plain to me that the judge is mistaken in her belief that the local authority had given the plain impression that it was planning to re-unite mother and baby pending the determination of the care proceedings. Such a plan was not only not within the local authority's power; it was not what counsel was proposing.
90. It was for these reasons that we did not hear argument on this part of the appeal, which in any event seemed to us peripheral to the main issue.
91. For all these reasons, I would allow the appeal and set aside the judge's findings.
Lady Justice Arden92. I agree
Lord Justice Wilson93. I also agree
88. In my judgment, the matter is put beyond doubt when counsel for the mother intervenes to ask for clarification of what the local authority intends to do. She wanted to know "whether they are proposing that the child is taken to the prison daily and also who is going to carry out the assessment". Counsel for the local authority replies that it is the social worker is to carry out the assessment, and that the local authority accepts no criticism of "actual social work assessments from this social worker or this team".
89. Although counsel for the local authority goes on to say "… it will be the position of the local authority to put a proposal forward which finds acceptance from everybody" it is plain to me that the judge is mistaken in her belief that the local authority had given the plain impression that it was planning to re-unite mother and baby pending the determination of the care proceedings. Such a plan was not only not within the local authority's power; it was not what counsel was proposing.
90. It was for these reasons that we did not hear argument on this part of the appeal, which in any event seemed to us peripheral to the main issue.
91. For all these reasons, I would allow the appeal and set aside the judge's findings.
Lady Justice Arden92. I agree
Lord Justice Wilson93. I also agree
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