Langley & Ors v Liverpool City Council & Ors

The Langley family live in Liverpool. The first and second claimants are the parents. They have four children. At the time that is material to these proceedings (September 2001), they were living together at 51 Sceptre Road, Liverpool. The three older children are James (then aged 9½ years), Ryan (then aged 5½ years) and Callum (then almost 4 years of age). The fourth child (Rebecca) who is not party to these proceedings was 2 months old. These proceedings concern the lawfulness of the removal of the three oldest children into the care of foster parents. Callum was removed from his home on 25 September and James and Ryan from the Royal School for the Deaf the following day. After a 5 day trial, His Honour Judge Morgan found that the first defendant (“the Council”) had acted unlawfully in relation to the removal of all three children. He held that the Council was liable to all five claimants for assault and false imprisonment as well as for breach of their rights under article 8 of the European Convention on Human Rights (“the Convention”). He found that the second defendant (“the Chief Constable”) had acted unlawfully in relation to the removal of Callum, and held that he was liable to Callum for assault and false imprisonment. But he dismissed the claims by the parents and Callum that the Chief Constable had violated their article 8 rights and also dismissed their claims that he had been negligent and committed the tort of misfeasance in public office.

Both the Council and the Chief Constable appeal against the findings of liability. Callum and the parents appeal against the dismissal of their claim that the removal of Callum was in breach of their article 8 rights. At the heart of these appeals lies an important question concerning the powers of the police under the Children Act 1989 (“the Act”) to remove children who are in need of emergency protection. It concerns the relationship between sections 44 and 46 of the Act. The judge held as a matter of statutory interpretation that, once an emergency protection order (“EPO”) has been granted under section 44 and as long as it remains in force, the police cannot remove a child to suitable accommodation under section 46.

All the members of the family except Callum are profoundly deaf. Mr Langley also suffers from Usher’s Syndrome which means that he has tunnel vision and night blindness. He was registered blind in 2000, and has been without a valid driving licence since September 1999.

The Social Services Department of the Council has had dealings with the family for a considerable period of time. There have been several problems and at the material time the three oldest children were on the Child Protection Register. A number of Child Protection Conferences had been held both in Devon (where the family had previously lived) and Liverpool. One particular concern expressed in the Conference Protection Plans was that Mr Langley persisted in driving a car with the children as passengers, despite the assurances that had been given by both parents that he would not do so. The judge accepted the evidence of the Social Services witnesses that he had driven the children fairly frequently. At the conference held on 6 August 2001, a Child Protection Plan was agreed which included the provision that “Social Services will instigate Care Proceedings in relation to the children, with the children remaining in the care of their parents subject to the Child Protection Plan.”

This was the background to the events of 24, 25 and 26 September 2001. On 24 September, Mr Langley drove a Range Rover from Liverpool to Derby. In the car with him were Mrs Langley and the three older children. The purpose of the journey was to take Ryan and James to the Royal School for the Deaf for four days of assessment. Ms Patricia O’Brien is a social worker employed by the Supported Living and Community Safety Portfolio of the Council who had been involved with the family since March 2001. She used to visit them weekly, and on each occasion she mentioned her concerns about Mr Langley’s driving. She received a message on 24 September from James Lynch, the Langley family support worker, that the family had gone to Derby and that their car was missing from outside the house. She contacted the school, who confirmed that Mr Langley had been seen driving into the school car park. She was told that Mr and Mrs Langley and Callum were not staying in Derby, but were intending to return to Liverpool and then go back to Derby on 27^th to fetch James and Ryan.

She contacted the Council’s Legal Services Department on the morning of 25 September and instructed them to apply for an EPO. A without notice application was duly made to the Liverpool Family Proceedings Court. The reasons given in the application form for the existence of reasonable cause to believe that the three children were likely to suffer significant harm if not removed to accommodation provided by the Council were that:

“Mr Langley suffers from Ushers Syndrome and is registered blind. Despite this, he has driven the children to Derby. According to an independent witness he has continued to drive the children whilst in Derby. The family intend to return to Liverpool on Thursday 27^th September 2001. The local authority has grave concerns for the children’s safety.”

Ms O’Brien and her Team Manager Patricia McGaw attended court on the morning of 25 September. They both gave evidence in support of the application. At 11.20 hrs, the court granted an EPO in respect of all three children giving the Council parental responsibility and authorising them to remove the children to accommodation provided by or on behalf of the Council. The order was expressed to end at midnight on 3 October.

In fact, by the time the EPO had been granted, Mr Langley had driven Mrs Langley and Callum back to Liverpool, leaving the two older children at the school in Derby. Ms O’Brien attempted to execute the EPO by going to their home in Liverpool. But nobody was there and the car was not outside the house. The judge found that Mr and Mrs Langley were out in the car with Callum and Rebecca. Ms O’Brien said that, if the family had been present in the house, she would have sought the assistance of the police and asked them to accompany her when she executed the EPO: they were a volatile family and she would not have wished to act on her own.

Having failed to contact the Langleys during normal working hours, Ms O’Brien contacted the Council’s Emergency Duty Team (“EDT”) at about 18.00 hours. At her request, they arranged for foster parents to be alerted. Ms O’Brien then went to Walton Lane Police Station. She spoke to PS Ray Jones, told him of her concerns for the safety of Callum and requested police assistance to find the missing child. She handed PS Jones a copy of the EPO and told him that foster parents had been alerted to take Callum into their care.

At 19.20 hours, together with 3 other police officers PS Jones went to 51, Sceptre Road and found the family at home. Mr Langley opened the door and permitted PS Jones to enter the house. He showed Mr and Mrs Langley a copy of the EPO. Callum was then awakened and taken from his bed. The officer decided to call Social Services before deciding how to proceed. He spoke to the EDT who confirmed that they wanted Callum to be taken into care. In his witness statement he explains that he considered that he had to decide whether to leave Callum at home, or remove him. He decided to remove Callum to the foster parents. He said that his main concern was that Callum might not be safe if he remained at home. He had noticed that the bonnet of the car was warm when he arrived at the property, and thought that there was a risk that the Langleys would remove Callum by car. In view of this concern and the response of the EDT, he decided that the only way to ensure Callum’s safety was to remove him to the foster parents. Together with two of the other officers, this is what he did.

The following morning, Ms McGaw met Mrs Langley and her sister at the Social Services offices. A sign interpreter was also present. Ms McGaw explained why the council had obtained the EPO. She discussed the situation and told Mrs Langley that Social Services intended to remove the two older children from the school in Derby into the care of the foster parents. She encouraged Mrs Langley to seek legal advice. On the same day, Ms O’Brien and Mr Lynch went to the school in Derby to remove James and Ryan. Once they discovered what had happened, the school decided that the children should leave as soon as possible. Ms O’Brien told the children that they would be staying with carers with whom they had stayed previously and where they had been happy. According to Ms O’Brien, the only thing that upset them was the fact that they were leaving the school before their assessments had been completed.

On 2 October, the EPO was extended for 7 days with the consent of Mr and Mrs Langley. On 8 October, an interim care order was made in respect of all four children that they be placed in the care of the Council.

Section 44 of the Children Act 1989 enables the court to make an EPO. So far as material, it provides:

“(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;

(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-

Section 46 gives the police the power to remove and accommodate children in cases of emergency. Section 46(1) provides that “where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may (a) remove the child to suitable accommodation and keep him there”. A child with respect to whom a constable has exercised his powers under section 46 is referred to as having been taken into “police protection” (subsection (2)). The constable concerned is required as soon as reasonably practicable after taking a child into police protection to take the various steps specified in subsection (3). These include informing the local authority of the steps that have been, and are proposed to be, taken with respect to the child and the reasons for taking them (para (a)); giving details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated (para (b)); securing that the case is inquired into by a designated officer (para (e)). Subsection (5) provides that, on completing any inquiry under subsection (3)(e), the officer conducting it shall release the child from police protection unless he considers that there is still reasonable cause for believing that the child would be likely to suffer significant harm if released. No child may be kept in police protection for more than 72 hours (subsection (6)). Subsection (7) provides:

“While a child is being kept in police protection, the designated officer may apply on behalf of the appropriate authority for an emergency protection order to be made under section 44 with respect to the child.”

Subsection (9) provides that while a child is being kept in police protection, neither the constable concerned nor the designated officer shall have parental responsibility for him, but the designated officer shall do what is reasonable for the purposes of safeguarding or promoting the child’s welfare.

Section 47(1) provides:

“Where a local authority

Subsection (3) provides that the enquiries shall be directed in particular towards establishing “(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)”.

Section 48 gives powers to assist in the discovery of children who may need emergency protection. Section 48(3) provides that an EPO “may authorise the applicant to enter premises specified by the order and search for the child with respect to whom the order is made.” Section 48 also provides:

“(9)

Where, on an application made by any person for a warrant under this section, it appears to the court-

(a)

that a person attempting to exercise powers under an emergency protection order has been prevented from doing so by being refused entry to the premises concerned or access to the child concerned; or

(b)

that any such person is likely to be so prevented from exercising any such powers,

it may issue a warrant authorising any constable to assist the person mentioned in paragraph (a) or (b) in the exercise of those powers, using reasonable force if necessary.

(10)

Every warrant issued under this section shall be addressed to, and executed by, a constable who shall be accompanied by the person applying for the warrant if-

(a)

that person so desires; and

(b)

the court by whom the warrant is issued does not direct otherwise.”

The judge held that the removal of Callum by the police was unlawful. He said (para 14): “Once the EPO has been granted, the authority for the police to attend to assist must be a warrant under s 48(9)”. In answer to the case advanced on behalf of the Chief Constable that the removal was sanctioned under section 46 and that PS Jones was not purporting to execute the EPO, but had relied on the EPO merely as strong evidence that Callum was at risk, the judge said:

“So it would be a case of the cart before the horse. If an officer can simply rely on his police protection powers under section 46 to assist the applicant to remove a child under the authority of an EPO I have to ask what is the purpose of s 48(9)? It has no purpose at all.”

He then explained at para 15 why he rejected the Chief Constable’s case that PS Jones was purporting to remove Callum pursuant to section 46:

“Unlike an arrest there is no requirement in such a case for the police officer to state at the time which statutory power he is purporting to exercise. As the only contemporaneous document produced at the trial, I believe that the Incident Log provides the key to the powers the police were seeking to exercise in removing Callum from his home. As I quoted in paragraph 10 (supra) the log (120) shows “Sgt. Jones will make to home address to effect EPO and take.” At 2055 hours it records “EPO effected.” He was holding a copy of the EPO, showed it to the Langley parents and to Nicola Green to explain why the police were there and was clearly purporting to execute it. Furthermore Ms. Patricia McGaw, a senior and very experienced social worker and then line manager to Ms.O’Brien, when asked in evidence her understanding of when the EPO had been executed, said initially in evidence “when the police arrived and removed Callum.” She went on to say that it could also be when he was delivered to foster parents but her first reaction I believe to be the true one. In my judgment Sgt. Jones’ statement that he was using police protection powers to remove the child and executing the EPO only when handing him over to Social Services is an ex post facto attempt to justify the action in law. The consequence is that the failure to apply to the court for a warrant under Section 48(9) authorising a constable to assist the applicant in the exercise of these powers and the failure of the applicant or his representative to attend in my judgment means that the police action in removing Callum was unlawful…..”

In short, therefore, the judge held that, if an EPO is in force, the police cannot invoke section 46, and the only part that the police can play in the removal of a child is by assisting, if authorised to do so by a warrant issued pursuant to section 48(9).

Having found that the removal was unlawful, the judge turned to consider each of the claims. He held that the Council had acted in breach of article 8 of the Convention in that, since there was no “urgent” danger, they should have sought a less drastic remedy than removal of the child, namely a prohibited steps order (“PSO”) under section 8 of the Act prohibiting Mr Langley from driving. At para 20 the judge said:

“……When asked if a PSO had been considered Ms. McGaw of Social Services said it had not. She said that it was an emergency situation with a journey taking place or about to take place as a danger to the children. She went on to say, referring to a PSO, “It is one thing to get one but it’s another to consider if it will be complied with.” Warnings and recommendations of the Case Conferences had failed to stop Mr. Langley but as yet no court order of any kind had been obtained to order him to cease driving the children. Such an order would be far more powerful than a recommendation and the effect of its breach could be clearly explained to him.

In my judgment rather than the drastic step of removing young children from their parents all alternatives should be considered. This obvious one had apparently not been. The urgent danger referred to by Ms. McGaw was no longer as urgent and the wrong basis on which the EPO had been obtained was now plain.”

As regards the Council, the judge concluded at para 21:

“For the reasons I have given I have decided that the 1^st Defendants were in breach of the Claimants’ rights under Article 8 of the ECHR in the obtaining of the EPO, in delegating its execution in relation to Callum to the 2^nd Defendants and by their EDT on the telephone to Sgt. Jones ordering Callum’s removal from the home notwithstanding the changed situation. Further they were in breach of those rights in removing Ryan and James from Derby and placing them with foster parents when no emergency justified such removal. They are therefore guilty of an unlawful act by virtue of S. 6(1) of the 1998 Act for which the Claimants must be compensated in statutory damages under S.8 of the Human Rights Act 1998 and such other damages as may be just.”

As for the police, the judge said:

“The 2^nd Defendants of course played a part in the removal of Callum from his home without lawful authority which must be reflected in findings of assault and false imprisonment against them. However so far as the Human Rights Act claim is concerned I am not satisfied that it could be said that Sgt. Jones’ response was disproportionate to the situation as he found it given the limited state of his knowledge of the background to the EPO. He had gone to Sceptre Road having been told that the child concerned was missing and when the child was found to be in bed he rang the EDT before taking any further action. As I have already recorded he was told by them that they “wanted the child taken into care.” What followed must in my judgment be laid principally at the door of the First Defendants rather than the Police and I do not therefore find against the Second Defendant under this head.”

The first question is whether the judge was right to hold that, once an EPO has been granted and so long as it remains in force, the police cannot exercise the power to remove a child under section 46 even if the statutory criteria for its exercise exist, ie that the constable has reasonable cause to believe that, unless the child is removed, he or she is likely to suffer significant harm

The starting point is to observe that the Act contains no provision which expressly prohibits the police from invoking section 46 where an EPO is in force. It follows that, if the power to remove a child under section 46 cannot be exercised where an EPO is in force, this must be because the Act so provides by necessary implication.

Are there any provisions in the Act which compel such an implication? There are several possible candidates. Section 46(3) provides that, as soon as practicable after taking a child into police protection, the constable concerned shall “(a) inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken with respect to the child under this section and the reasons for taking them” and “(b) give details to the authority within whose area the child is ordinarily resident (“the appropriate authority”) of the place at which the child is being accommodated”. I accept that, where an EPO is in force, it will often be unnecessary for the constable to inform the authority in accordance with (a) or (b), because the authority will already have the information. But in my judgment the inference that police protection is therefore not available under section 46 where an EPO is in force is unwarranted. First, in so far as any submission to the contrary is based on a surplusage argument, it is weak: see, for example, per Lord Hoffmann in Walker v Centaur Clothes Ltd [2000] 1WLR 799, 805D. Secondly, even where an EPO is in force, the local authority and (if different) the appropriate authority may not have the information referred to in section 46(3)(a) and (b). For example, the EPO may have been obtained by an “authorised person” rather than a local authority: see section 44(1)(b) and (c).

Section 46(7) provides that, while a child is being kept in police protection, the designated officer may apply on behalf of the appropriate authority for an EPO under section 44. But the existence of this provision does not necessarily imply that the police protection powers given by section 46 cannot be used where an EPO is already in force. It merely gives the designated officer the discretion to apply for an EPO where one is not in force.

I have already set out the relevant parts of section 47(1) and (3) at paras 15 and 16 above. In my judgment, the section 47 duty to investigate does not by implication preclude the ability to use the power to remove a child under section 46 where an EPO is in force. If an EPO is already in force, section 47(3)(c) will not come into play, because the child’s best interests do not require the authority to ask for an application to be made under section 46(7): such an application is unnecessary in these circumstances. Section 47(3)(c) certainly contemplates that an EPO may not be in force in relation to a child who has been taken into police protection; but in my view it is not implicit in this provision that a child cannot be taken into police protection where an EPO is already in force.

Finally, section 48(9) and (10). The judge was impressed by the point that if the police can exercise the section 46 power where an EPO is in force, then section 48(9) serves no purpose. This is another surplusage argument as to which see para 26 above. In my judgment, section 48(9) does not bear the weight attributed to it by the judge. It caters for the specific problem that arises where the person who is attempting to exercise powers under an EPO has been, or is likely to be, prevented from doing so by being refused entry to premises or access to the child. In such circumstances, the court may issue a warrant authorising a constable to assist the person in the exercise of those powers, using reasonable force if necessary. I do not see how the existence of the jurisdiction to grant a warrant in such circumstances is inconsistent with the existence of the jurisdiction to remove a child under section 46 where an EPO is in force. For reasons that I shall explain, where an EPO is in force it is almost always preferable for the removal of children to be effected by professional social workers executing the EPO rather than by police officers acting under section 46. But it is sometimes necessary for social workers to obtain police assistance, and that is why section 48(9) is important.

In my judgment, therefore, there is nothing in the language of the Act which compels the conclusion that section 46 cannot be invoked where an EPO is in force. As Mr Wells points out, it would be most unfortunate if the position were otherwise. Two examples will suffice to demonstrate this. Let us suppose that an EPO is in force, but a constable is unaware of it. He comes across a child who he has reasonable cause to believe would be likely to suffer significant harm if not removed (ie the section 46(1) criteria are satisfied). If the judge is right, the removal of the child, otherwise unimpeachable, is unlawful because, unknown to the officer, an EPO is in force in respect of the child. In my view, the jurisdiction to remove a child under section 46 where an EPO is in force cannot depend on whether the constable is aware of its existence. There is nothing in the Act which suggests that the officer’s knowledge is relevant. On the judge’s interpretation, the existence of the EPO is fatal: of itself it renders the officer’s removal unlawful. If this is right, its implications for the protection of children at risk of significant harm are serious. Since police officers cannot have a comprehensive knowledge of all the EPOs that are in force, they would be at risk of acting unlawfully every time they remove a child under section 46. Such an interpretation would be likely to discourage the police from invoking section 46. In this way, there would be a real danger that one of the important powers provided by Parliament for the protection of children at risk would be emasculated.

In the second example, an EPO has been made in respect of a child on the application of the local authority in Liverpool, and the constable comes across the child in Cornwall. Let us suppose that the officer is aware of the EPO, and he considers that the child is in real danger. He considers that it is necessary to act urgently to remove the child to suitable accommodation in order to protect him or her, and it will take some time to contact the Social Services of Liverpool City Council to alert them to the need to execute the EPO. It would be most unfortunate if in such circumstances the constable were unable to invoke section 46 to protect the child.

The relevant provisions of the Act should be construed so as to further the manifest object of securing the protection of children who are at risk of significant harm. A construction of the Act which prohibits a constable from removing a child under section 46 where he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm would frustrate that object. I would, therefore, reject the judge’s interpretation of the Act. The section 46 power to remove a child can be exercised even where an EPO is in force in respect of the child.

The next question is whether, on the assumption that the criteria in section 46(1) are met, there are any limitations on the power of the police to remove a child under section 46 where an EPO is in existence. No such limitations are expressed in the Act. But it is trite law that discretionary statutory powers must be exercised to promote the policy and objects of the statute: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030C. The broad policy and objects of Part V of the Act are not in doubt: they are to provide for the protection of children in circumstances where there is reasonable cause to believe that they are suffering or likely to suffer significant harm. But in enacting Part V, Parliament has provided a detailed and carefully structured scheme for the removal of children in such circumstances.

The first point to make about section 44 is that an EPO is a court order, which cannot be made unless the court is satisfied that the conditions prescribed by section 44(1) (a), (b) or (c) are met. An EPO gives an applicant parental responsibility for the child, but it does not of itself require the applicant to remove the child. The applicant may only remove the child “in order to safeguard the welfare of the child” and “shall take only such action in meeting his parental responsibility for the child as is reasonably required to safeguard or promote the welfare of the child” (subsection (5)). The court 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” (subsection (6)). Where an EPO is in force, the applicant shall, subject to any direction given under subsection (6) allow the child reasonable contact with the persons specified in subsection (13).

The section 46 regime is quite different. The court is not involved. A police constable is authorised to remove a child if he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm. As we have already seen, as soon as is reasonably practicable after taking the child into police protection, the constable must inform the local authority within whose area the child was found of the steps that have been, and are proposed to be, taken and the reasons for taking them, and give details to the appropriate authority of the place at which the child is being accommodated. The designated officer may apply on behalf of the appropriate authority for an EPO.

For the reasons which follow, I would hold that, where a police officer knows that an EPO is in force, he should not exercise the power of removing a child under section 46, unless there are compelling reasons to do so. The statutory scheme shows that Parliament intended that, if practicable, the removal of a child from where he or she is living should be authorised by a court order and effected under section 44. Parliament could have provided simply that specified persons could remove children if the statutory criteria are satisfied without any court involvement at all. But the removal of children, usually from their families, is a very serious matter. It is, therefore, not at all surprising that Parliament decided that the court should play an important part in the process. This is a valuable safeguard. The court must be satisfied that the statutory criteria for removal exist.

There are a number of important differences between the section 44 and section 46 regimes. They include the following. First, the court can give directions with respect to contact, examinations and assessments. This is a valuable power not available to the police. Secondly, an EPO gives the applicant parental responsibility, whereas while a child is being kept in police protection under section 46 neither the constable nor the designated officer has parental responsibility. Thirdly, no child can be kept in police protection for more than 72 hours, whereas an EPO may have effect for a period not exceeding 8 days (section 45(1)), and this period may be extended by up to 7 days (section 45(5)).

In my judgment, the statutory scheme clearly accords primacy to section 44. Removal under section 44 is sanctioned by the court and it involves a more elaborate, sophisticated and complete process than removal under section 46. The primacy accorded to section 44 is further reinforced by section 46(7) and 47(3)(c). The significance of these provisions is that they show that it was contemplated by Parliament that an EPO may well not be in force when a removal is effected under section 46, and that removal under section 46 is but the first step in a process which may later include an application for an EPO.

It is also relevant to point out that children who require emergency protection and have to be removed are often already well known to the Social Services Department within whose area the children are ordinarily resident. It is obviously preferable for the removal of a child to be effected if possible by, or at least with the assistance of, social workers who are known to the child, rather than by uniformed police officers who will almost certainly be strangers to the child. Whether known to the child or not, a social worker has skills in dealing with the removal of children from their homes which the most sensitive police officer cannot be expected to match.

I would, therefore, hold that (i) removal of children should usually be effected pursuant to an EPO, and (ii) section 46 should be invoked only where it is not practicable to execute an EPO. In deciding whether it is practicable to execute an EPO, the police must always have regard to the paramount need to protect children from significant harm.

We were shown Home Office Circular 44/2003 on the duties and powers of the police under the Act. This came into force on 9 August 2003. It was not in force at the time of the events with which this appeal is concerned. It does not have any statutory force. Nevertheless, I find what it says about section 46 instructive, viz:

“When to use police protection

14.

Police protection powers should only be used when necessary, the principle being that wherever possible the decision to remove a child from a parent or carer should be made by a court.

15.

All local authorities should have in place arrangements (through their local chief Executive and Clerks to the Justices) whereby out of hours applications for Emergency Protection Orders (EPOs – see paragraphs 49 to 54 below) may be made speedily and without an excess of bureaucracy. Police protection powers should only be used when this is not possible.”

The circular that was in force in September 2001 was Circular No 54/1991. Para 13 states:

“Section 46 provides for the taking of a child into police protection in cases of emergency when there is no time to apply for an order.”

Both circulars are consistent with my interpretation of the Act.

There was an issue before the judge as to whether PS Jones removed Callum under section 46 (as he contended) or whether he did so by purporting to execute the EPO under section 44 (as the claimants contended). The judge held that the officer was purporting to execute the EPO and that his statement that he was invoking section 46 was “an ex post facto justification to justify the action in law.” By his third ground of appeal, the Chief Constable seeks to challenge this finding. For reasons that I shall explain, I do not find it necessary to resolve this issue. At this stage of the discussion, I shall assume that PS Jones removed Callum under section 46.

It follows from the analysis at paras 24-32 above that PS Jones had jurisdiction to remove Callum pursuant to section 46. Were there compelling reasons for exercising this power when, to his knowledge, an EPO was in force which authorised the Council to remove Callum into the care of foster carers? In my judgment, there were no such reasons. I intend no personal criticism of PS Jones who, on the judge’s unchallenged findings, handled a difficult situation with tact and sensitivity. But no explanation has been provided as to why the Council did not execute the EPO itself. Ms O’Brien had attempted to do just that during normal working hours on 25 September. She was rightly concerned about the safety of the child. At about 18.00 hours, she contacted the EDT and asked them to arrange for the foster parents to be alerted. There is no evidence that, if asked to execute the EPO, the EDT would not have been able to do so within a short time. Even in these times of straitened financial circumstances, it is reasonable to suppose that a large local authority such as the Council has sufficient resources to execute an EPO out of hours in a situation of emergency.

In my judgment, when PS Jones telephoned the EDT, he should have asked them to come to the Langleys’ home to execute the EPO. Instead, it seems that he telephoned them to ask for their views about whether Callum should be removed, so that he could take these into account when making his own independent judgment as to whether to remove the child under section 46. In my view, when an officer is aware that an EPO is in force, this is the wrong approach. In the first instance, he should have asked the EDT whether they could execute the EPO. If their response was that they could not execute it for some time, he might well have been justified in removing Callum under section 46. Whether he would have been so justified would have depended on the time that would be likely to pass before the arrival of the EDT and whether it was practicable for him in the meantime to prevent Mr Langley from removing Callum from the house, if necessary with the assistance of his fellow officers.

Mr Wells submits that PS Jones was merely asked by Ms O’Brien to find Callum. Having found the child, he formed the view that there was a risk of significant harm. In reaching this conclusion, he took into account the EPO, the views of the EDT and his own assessment of the situation. He reasonably concluded that the threshold criterion for a section 46 removal existed, so that the removal was lawful. But for the reasons I have given, this is the wrong approach where an officer is aware that an EPO is in force. PS Jones was in error in failing to ask himself whether there were compelling reasons why he should invoke section 46 rather than leave it to the Council to execute the EPO.

I would therefore hold that the removal of Callum was unlawful.

I do not understand Mr Wells to submit that, if the removal of Callum was unlawful, the judge was wrong to find that the Chief Constable was liable to Callum in assault and false imprisonment. The judge rejected the claim by the parents and Callum for breach of article 8. I have set out his reasons at para 23 above.

It is submitted by Mr Thacker on behalf of the family that the judge erred in rejecting the human rights claim. His argument could hardly be simpler. Article 8 of the Convention provides:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Mr Thacker submits that the removal was an interference by a public authority with the parents’ and Callum’s right to respect for family life. It was unlawful and therefore not “in accordance with the law”. The interference cannot, therefore, be justified under article 8(2).

In response, Mr Wells submits that, if a breach of human rights is accidental or inadvertent (as he contends it was in the present case), then it would not be right to penalise the public authority, since it has acted in good faith and where it has acted proportionately. He relies on the observations of Lord Hoffmann in Wainwright v Home Office [2003] UKHL3, [2004] 2 AC 406, [2004] 2 AC 406, para 51:

“51.

Article 8 is more difficult. Buxton LJ thought, at [2002] QB 1334, 1352, para 62, that the Wainwrights would have had a strong case for relief under section 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although article 8 guarantees a right of privacy, I do not think that it treats that right as having been invaded and requiring a remedy in damages, irrespective of whether the defendant acted intentionally, negligently or accidentally. It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs. Article 8 may justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage is suffered other than distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety: compare Hicks v Chief Constable of the South Yorkshire Police [1992] 2 ALL ER 65.”

Wainwright was a pre-Human Rights Act 1998 case. These observations are, therefore, obiter dicta. At para 63, Lord Scott left open the question whether conduct inflicted on the claimants in that case would constitute a breach of article 8. Mr Wells was unable to cite any domestic or Strasbourg authority to support the broad proposition that an act which interferes with a person’s family life and which is unlawful according to our domestic law, may nevertheless not be a violation of that person’s article 8 rights because the unlawful act was accidental or inadvertent. If the removal of Callum to the care of the foster parents could lawfully have been effected by the Council’s EDT executing the EPO, then it is tempting to characterise his removal by PS Jones as a mere technical error of law. In my view, it was more than a mere technical error. It is for good reason that Parliament has accorded primacy to section 44. The police undoubtedly have a role to play in protecting children from the risk of significant harm. But for the reasons that I have given, they should not carry out this sensitive and difficult work where they know that an EPO is in force unless there are compelling reasons for them to do so. Whenever possible, this work should be done by social workers or other persons who have the skills and experience to do it. Even if Lord Hoffmann’s observations are correct, there is a material difference between merely negligent acts of the type to which he refers, and the unlawful removal by a police officer of a child from his family, even where (as in the present case) the removal was made by an officer who acted in good faith in circumstances which justified the removal of the child by the Council’s social workers to the very foster carers into whose care he removed them.

In my judgment, the judge was wrong to reject the claim for breach of article 8. If the act of PS Jones was unlawful and therefore not “in accordance with the law”, it was no answer to the claim to find that that the response of PS Jones was not “disproportionate to the situation as he found it.”

I would therefore allow the appeal of the first three claimants against the judge’s dismissal of their claim under article 8. In these circumstances, it is not necessary for me to deal with the third ground of appeal and decide whether the judge was right to hold that PS Jones was not purporting to remove Callum under section 46.

The judge held that the Council was liable to the parents and Callum for assault and false imprisonment as well as for breach of their article 8 rights. He said that the Council was at fault in obtaining the EPO and in procuring the removal of Callum by PS Jones.

It is convenient to deal here with all the arguments relating to the lawfulness of obtaining the EPO, including those which specifically concern James and Ryan. The judge held that the Council should not have sought the EPO at all. His reasons were that (i) they should have obtained a PSO; (ii) the danger to the children was not sufficiently urgent to justify the making of an EPO, and (iii) the factual basis on which the application was presented to the court was incorrect: Mr Langley was not intending to drive from Derby to Liverpool on 27 September, since he had already returned to Liverpool by the time the application was made.

The judge said that to obtain an EPO when a PSO had not been considered, let alone tried, was a disproportionate response by the Council to the situation. A PSO requiring Mr Langley to stop driving his children might have succeeded where assurances given to Social Services had failed. A PSO is far less intrusive and disruptive of family life than an EPO.

It is important to keep in mind that the function of the court in deciding whether the Council’s decision to seek an EPO was proportionate is one of review. But it is not a full-blown review on the merits. As Lord Steyn said in R(Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 1 AC 532, at [28]: “the respective roles of judges and administrators are fundamentally distinct and will remain so.” In appropriate cases, judges should show some deference to decision-makers: see per Lord Walker in R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23, [2004] 1 AC 185 at [132]. At [138], Lord Walker approved as a useful summary the following passage in the third (2001) edition of Judicial Review Handbook by Michael Fordham:

“Hand in hand with proportionality principles is a concept of ‘latitude’ which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a ‘flexi-principle’. The latitude connotes the appropriate degree of deference by court to public body. In the Strasbourg (ECHR) jurisprudence the concept of latitude (called ‘the margin of appreciation’) comes with a health warning: it has a second super-added deference (international court to domestic body) inapt to domestic judicial review (domestic court to domestic body). This means that Human Rights Act review needs its own distinct concept of latitude (the ‘discretionary area of judgment’). The need for deference should not be overstated. It remains the role and responsibility of the Court to decide whether, in its judgment, the requirement of proportionality is satisfied.”

In Venema v The Netherlands [2003] 1 FLR 552, the ECHR considered whether a local Child Welfare Board had acted in compliance with article 8 in obtaining a without notice supervision order, which had the effect of removing a child from the care of her parents. In an important passage, the court said this:

“90.

Against this background, the Court reiterates that its role is not to substitute itself for the domestic authorities in the exercise of their responsibilities in the field of the compulsory taking of children into public care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. While national authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the circumstances of the case that there existed circumstances justifying such a measure. In this respect, it must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion to be drawn that it was “necessary in a democratic society” (see P., C. and S. v. the United Kingdom, cited above, §§ 114-16).

91.

The Court reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 of the Convention. The applicable principle has been stated as follows (see B. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 73, 74 § 65):

“In the Court’s view, what … has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.”

92.

It is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise, the parent will be unable to participate effectively in the decision-making process or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection (see McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 57, § 92, and T. P. and K. M. v the United Kingdom [GC], no. 28945/95, § 73, ECHR 2001-V).

93.

The Court accepts that when action has to be taken to protect a child in an emergency, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The Court must however be satisfied that the national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of the child from the care of its parents without and prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to the removal of the child from its family, was carried out prior to the implementation of a care measure (see K. and T. v. Finland, cited above, § 166).”

Although this passage is concerned with the margin of appreciation that should be accorded by the ECtHR to national courts, it seems to me that there is much here that has application when the national court is reviewing the decision of an authority to seek to remove a child from those who have custody of him or her. An authority such as the Council in the present case is better equipped than the court to judge how urgent a situation is, and whether in all the circumstances removal of the child is necessary. In my view, therefore, persons in the position of Ms O’Brien and Ms McGaw should be allowed some latitude by the court when reviewing their decisions in these difficult cases where they have reasonable cause to believe that a child is at risk of significant harm. Of course, the court should never lose sight of the fact that the removal of children from those who have custody of them is an extreme form of interference with family life and calls for compelling justification.

They were clearly justified in taking the view that Mr Langley had shown himself to be a real threat to the safety of his children. Assurances had been given fairly frequently and broken equally frequently. The assessments of Ms O’Brien and Ms McGaw were that the only way to protect these children was to take them into care. Ms McGaw admitted in evidence that she did not give consideration to obtaining a PSO. But she said that her opinion at the time was that nothing less than an EPO would have sufficed to protect the children. If she had applied her mind specifically to a PSO, she would have rejected it as an option: “a PSO would not have stopped that journey taking place (sc the return from Derby to Liverpool) or stopped Callum being brought back. We had to have an order that took Callum and the other children out of that situation for a period of time to try and engage the family again” (Transcript Day 3 page 54).

Mr Thacker submits that, if Mr Langley’s driving gave rise to an emergency need to protect the children, it is strange that the Council did not seek an EPO in relation to baby Rebecca as well. He also makes the point that there was no emergency in relation to James and Ryan, since the Council believed that these two children would be safe at the Derby school until 27 September. These two features of the case, he submits, cast considerable doubt on the existence of a true emergency.

In my view, the judge was wrong to hold that the decision to seek an EPO was in breach of article 8. The critical issue is whether the decision to seek an EPO rather than a PSO was a disproportionate response by Ms O’Brien and Ms McGaw. Against the background of previous failed attempts to persuade Mr Langley to behave responsibly and desist from driving his children, and having regard to the real threat to their safety that his driving represented, the decision to seek an EPO was in my view a reasonable and proportionate response. In reaching this conclusion, I have accorded a measure of deference or latitude to the judgment of Mr O’Brien and Ms McGaw. The fact that, inexplicably, the Council did not include Rebecca in the EPO does not fatally undermine the justification for seeking an EPO. Similarly, the fact that on 25 September there was no immediate threat to the safety of James and Ryan (because they were safe in their school) is not sufficient to impugn the EPO. The decision to obtain the EPO on 25 September did not commit the Council to execute it until after the two older boys had completed their assessments in Derby. Once these had been completed, the danger to the two boys would be immediate and real.

Finally, I should mention the fact that Mr Thacker criticises the Council for failing to consult the parents before obtaining the EPO. It is clear from the Venema decision that it is important that, so far as possible, parents should be consulted as part of the decision-making process. But Ms McGaw explained that the Social Services had tried to find the parents before applying to the court, and had been unable to do so. In view of the emergency, particularly in relation to Callum, I do not consider that the failure to consult the parents before the EPO was obtained renders the decision to obtain the EPO unlawful.

There can be no doubt that PS Jones did not execute the EPO. He had no authority to do so. He was not the applicant who had obtained the EPO. Nor did he purport to execute the EPO on behalf of the Council. He said that he exercised his own judgment as to whether to remove Callum, and, as I understand it, there was no challenge to this part of his evidence. Ms O’Brien did not suggest in her witness statement that she had asked him to execute the EPO: she had merely made him aware of the situation ie that there was no-one at the family home. In other words, she asked him to find the child.

But the Council undoubtedly played a major part in securing the removal of Callum by PS Jones. In particular, when he telephoned the EDT to inform them that he had found the child and to ask them what they wanted to do, they should not have said that they wanted Callum to be taken into care, thereby inviting PS Jones to remove him without more ado. Rather, they should have told the officer to ensure that Callum remained in the house until one or more Council social workers could come to execute the EPO. In my judgment, the Council’s failure to do this contributed to the unlawful removal of Callum by PS Jones. The judge found that the Council had acted unlawfully in “ordering Callum’s removal”. In my view, it is difficult to characterise what the EDT representative said to PS Jones as an “order”, but for the reasons I have given, I agree with the judge’s conclusion that the Council is liable to Mr and Mrs Langley as well as Callum for his removal.

I refer to paras 57 to 65 above.

The Council were entitled to execute the EPO as soon as the boys left the school. The judge considered that the removal of James and Ryan was unlawful because there was no emergency. Ms McGaw explained why in the judgment of Ms O’Brien and herself there was an emergency (see para 61 above). Allowing appropriate deference or latitude to their judgment, I respectfully disagree with the judge. Ms McGaw said that this was a “volatile” family. A blind man who persistently drives is a danger to himself and everyone affected by his driving. Just as the Social Services were justified in obtaining an EPO, so they were justified in executing it.

During the course of his cross-examination of Ms McGaw, Mr Thacker suggested that the Social Services had failed sufficiently to consult the parents and to explain to them why they had obtained the EPO and why they were intending to execute it. I have summarised the evidence at para 11 above. I reject the submission that there were failures to consult and explain which, having regard to the guidance given in Venema (see para 59 above), justify a finding that there was a breach of article 8 in relation to the removal of James and Ryan. The first point to note is that this was not the way in which the article 8 case was pleaded. But secondly and in any event, Ms McGaw provided a complete answer. She did explain to Mrs Langley why the EPO had been obtained, and in the circumstances it was obvious why, having obtained the EPO, the Council intended to execute it. And an interpreter was present throughout the meeting on the morning of 26 September.

For the reasons that I have given, I would dismiss the Chief Constable’s appeal. As I have said, no blame attaches to PS Jones personally: he was placed in a difficult position by the EDT of the Council. The appeal of the first three claimants against the dismissal of their claims for breach of article 8 should be allowed. I would also dismiss the Council’s appeal against the findings of liability in relation to the removal of Callum, but allow it in relation to the removal of James and Ryan. But since I consider that the EPO was justified in this case and that it was appropriate to execute it to remove Callum on 25 September, it is difficult to see on what basis an award of substantial damages could properly be made because the removal was effected by the Chief Constable, and not the Council. The issue of damages is not, however, before this court.

Finally, I have not found it necessary to deal with the claimants’ appeal against the judge’s dismissal of their claim in negligence against the Council. Mr Thacker acknowledged that in substance the claim in negligence added nothing to the claim under article 8. I should also mention the Council’s complaint about the judge’s refusal to adjourn the case to enable Ms O’Brien to give evidence. This was a case management decision and a matter for the judge’s discretion. In my judgment, this was a hopeless ground of appeal which Mr. Prior rightly did not pursue with any vigour.

I agree.

I have had the advantage of reading in draft the judgment of My Lord, Dyson, LJ, and I agree with all his conclusions. I add a brief judgment of my own to provide the perspective of a family lawyer.

In the county court it was rightly perceived that the case should be listed before a specialist and the trial was directed to the list of the Designated Family judge. Unfortunately other arrangements had to be made at a late stage. Thus the case was listed before a deputy. We were informed that His Honour Judge Morgan is a retired circuit judge. Although a well respected judge in the Civil Law field he had never been authorised to sit to hear public law cases under the Children Act 1989. Had the case been listed before the Designated Family judge, as originally intended, I am confident that there would have been a different outcome.

In so saying I specify Judge Morgan’s conclusion that the Local Authority breached the Article 8 rights of the family by seeking an emergency protection order rather than a prohibited steps order. That conclusion strikes me, as a family lawyer, as astonishing. I would thus reject that conclusion more robustly than my lord has done in paragraphs 56 to 64 of his judgment by reference to authority, particularly the apt case of Venema v The Netherlands.

In the first place it is Parts IV and V of the Children Act 1989 that provides the state, through the agency of the local authority, with power to intervene in the life of a family. Practitioners, whether in the legal department or the social services department of the local authority, will naturally consider the powers provided by Parts IV and V, and the limitations on those powers, when considering how and to what degree they should invade the territory of the family in order to protect its children. If there is no imminent danger the appropriate application is for an interim care order. If there is greater urgency the appropriate remedy is an emergency protection order. It is to be emphasised that even in an emergency the local authority must apply in the family proceedings court for the order and prove the need for the order to the satisfaction of the court. This is a potent check on the local authority’s powers of intervention in emergency. In the present case I emphasise that the family proceedings court was satisfied that the local authority’s proposed intervention by way of an emergency protection order was appropriate and proportionate.

The power to grant a prohibited steps order is to be found in Part II of the Children Act 1989. It is one of a range of orders defined in s8. It was a new label attached to the familiar remedy of an injunction prohibiting an action. It is a private law remedy required to prevent threatened or repeated misconduct, generally in a warring family. I have yet to encounter a case in which a local authority has decided that it can achieve the end that its child protection duties require by applying for a prohibited steps order. In my judgment the submission that in the present case their failure so to do amounted to a breach of the family’s Convention rights is mere advocacy. On the facts of this case it should have been seen as such and rejected. Thus I would reverse the judge on this question without reference to authority establishing the extent of the margin of appreciation. My lord has already emphasised how a mere injunction would have added nothing to steps already taken by other authorities in an endeavour to prevent the father endangering himself and others by driving.

The conclusions that I have expressed in the previous paragraph are supported by the decision of this court in the case of Nottingham County Council v P [1994] FAM 18. The Children Act 1989 was then a relative novelty and the decision established the boundary between powers granted to Local Authorities under Part IV of the Act and their ability to resort to section 8 orders by way of supplement. The point then before the court was directly covered by section 9(2) and (5) of the Act but the following statement of principle at p.39 is of general application: -

“A wider question arises as to policy. We consider that this court should make it clear that the route chosen by the local authority in this case was wholly inappropriate. In cases where children are found to be at risk of suffering significant harm within in the meaning of section 31 of the Children Act 1989 a clear duty arises on the part of local authorities to take steps to protect them. In such circumstances a local authority is required to assume responsibility and to intervene in the family arrangements in order to protect the child. Part IV specifically provides them with wide powers and a wide discretion. As already pointed out the Act envisages that local authorities may place children with their parents even though they may have a care order under section 31.

A supervision order may be viewed as being less draconian but it gives the local authority a wide discretion as to how to deal with children and with the family. A prohibited steps order would not afford the local authority any authority as to how it might deal with the children. There may be situations, for example where a child is accommodated by a local authority, where it would be appropriate to seek a prohibited steps order for some particular purpose. However, it could not in any circumstances be regarded as providing a substitute for an order under Part IV of the Act of 1989.”

It follows that in my judgment all that was done by the authorities was perfectly legitimate until the telephone conversation between DS Jones and the EDT and its consequence. I agree with my lord that the call and its consequence put both authorities in breach of the family’s Convention rights. In my judgment the responsibility for that regrettable development lies with the local authority. The social worker should have perceived that she could involve the police to locate the child but not to execute the EPO. In the circumstances she should have appreciated that the obvious and desirable consequence of her visit to the police station was that the police would indeed locate the child. Accordingly she should have put in place arrangements for the execution of the EPO as soon as the police succeeded in their given task. To the same effect, the EDT, once the police reported their success, should have themselves executed the EPO. They could not lawfully delegate that task to the police: S45 (12) and S48 (9) of the Children Act 1989 in combination have that effect. Thus I have considerable sympathy for the position of the Chief Constable who finds himself in unwitting breach of Convention rights having, through DS Jones, done his best to support the local authority in the discharge of its duties. Child protection services depend vitally on interdisciplinary collaboration if they are to be fully effective. That was all that the police were, in my judgment, seeking to provide.