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A v East Sussex County Council (1) & Chief Constable of Sussex Police (2), Court of Appeal, 2 July 2010

9 July 2010
The issues

Human Rights Act 1998 Section 7 – social services – child protection – powers and duties of Local Authority and police when child at risk of significant harm.

The facts

The Claimant was 22 when she gave birth to her first child, B, on the 11th October 2008. She had had a difficult childhood herself and was an anxious mother and had suffered from post-natal depression. On the 22nd December 2008 she told the emergency services that the child had stopped breathing. He was admitted to Eastbourne General Hospital with the mother. Two days later the hospital thought B could have been discharged but there was a concern that the mother had reported two incidents of the child stopping breathing. No explanation for these incidents could be found, nor had anyone else seen them. The consultant in charge had a concern that this was an example of factitious illness. Under the procedure known generally as “Working Together”, social services were notified, as were the police. B remained in hospital until the 29th December 2008, the mother spending the day with him but being required to go home at night. On that day B was removed from the hospital and from the mother by the police, pursuant to Section 46 of the Childrens Act 1989 and taken into foster care. Two days later, in the course of a hearing before the Family Proceedings Court, the mother agreed to go with B into a mother and baby unit. That worked out well. The mother and child returned home. Proceedings were discontinued and had not been reinstated. She brought a claim for damages against both the East Sussex County Council and the Chief Constable of the Sussex Constabulary. The Judge at first instance dismissed that claim.

The Claimant Appealed.

The decision

At the time that the consultant had concerns, there were no orders in place and the child was ready for discharge. There was no legal restraint therefore on the mother removing the child. That was the context in which the decision had to be made. The decision that was in fact made was to institute proceedings under the Act, but in the meantime to remove the child under the powers conferred on the police by Section 46 of the Act. The question was whether these actions were lawful and proportionate.

The Local Authority had three options. They could have obtained the mother’s agreement to accommodate B under part 3 of the Act. They could have sought from the Family Proceedings Court an Emergency Protection Order under Section 44. Finally, they could have left the police to act as they did. Guidance was to be had from the Court of Appeal’s decision in Langley v Liverpool City Council [2005]. In that case, the Court emphasised the distinction between Section 44 and Section 46. An EPO under Section 44 was a Court Order, whereas the power exercised under Section 46 did not involve an order of the Court. In the Court’s view, the statutory scheme accorded primacy to Section 44. Generally, the Court held that removal of children should usually be affected pursuant to an EPO and that Section 46 should be provoked only where it was not practicable to execute an EPO. In deciding whether it was practicable the police had always to have regard to the paramount need to protect children from significant harm. The Claimant argued that had an EPO been applied for, it would not have been granted. On the basis of the decisions in re: X (Emergency Protection Orders) [2006] and X Council v B (Emergency Protection Orders) [2004]. In the latter case, McFarlane J noted that in cases of fabricated illness where there was no medical evidence or of immediate risk of harm to the child, an EPO would rarely be warranted. On the basis of the evidence, the Judge found that the decision to take the child into foster care was justified given the appreciation of the emergency as it was perceived to be.

In the view of the Court of Appeal this was a view entirely open to him on the evidence. He assessed the evidence as he should have done, on the basis of what the decision makers knew and reasonably should have known at the time they had to make decisions. East Sussex County Council were entitled to conclude that the exercise of statutory powers was necessary to protect B.

Was it reasonable to take the route that had been taken? Following Langley, an application should be made for an EPO, rather than exercising powers under Section 46 wherever it is reasonably practical to do so. The Judge found that it was not practicable. His assessment had to be on the basis not of hindsight but as the facts appeared to decision makers on the ground. On that basis, the Judge had been entitled to reach the conclusion that he had done. The Appeal should be dismissed.

However, things could have been handled better. It would be appropriate therefore to provide some guidance as to the approach to be taken in circumstances such as these.

It was essential, wherever possible, to work in partnership with a parent. Where parents had access to a solicitor, the solicitor should be told of the Authority’s concerns and the solicitors should be invited to give advice to the parent. Where it was appropriate to exercise emergency powers, the least intervention would be the best. In this case, it would have been surprising if the hospital, if pressed, had refused to keep the child for an additional 2 days. The removal of the child to a known destination, ie a relative, was to be preferred to removal to a stranger. If there were removal to a stranger the parent should, in the absence of good reason, be informed of that fact and be allowed to pass relevant information to the carer and speedy arrangements should be made for contact. If a Court Order has not been obtained, an inter-parties hearing should be arranged as soon as possible. Where practicable, an Order of the Court should be sought in preference to the use of Section 46 powers. Social workers are in a difficult situation with regard to these cases. If they took no action and something went wrong, heavy criticism would follow. If they took action which turned out to be unnecessary, they would cause distress to an already distressed parent. They had draconian powers and it was vital that if child protection was to command public respect, those powers should be exercised lawfully and proportionately. However, child protection came only at a cost – in this case to an innocent parent who was subject to it based on the emergency assessment of risk; and to Public Authorities who had to account in a judicial setting for their exercise of power. It was a cost however that was inevitably exacted if children were to be protected.

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