A v East Sussex County Council & Ors

The case raises in stark form the question of the powers and duties both of the local authority and the police when confronted with a child at risk of significant harm where no orders are in place and time is of the essence. That powers exist for use in these circumstances is clear enough; the question is: which powers should be used and what (if anything) should be done to avoid the use of compulsive powers?

This is an application for permission to appeal (with appeal to follow if granted) against a judgment and order of HHJ Coltart given and made on 2^nd December 2009 whereby he dismissed the claim for damages brought under Section 7 of the Human Rights Act 1998 by A against both the East Sussex County Council (ESCC) and the Chief Constable of the Sussex Constabulary (CCSC). Since we heard this as a full appeal, it is right in my view that we should grant permission to appeal.

It is necessary to consider the facts in this case in a little detail to understand the context in which the issues under consideration arose before the learned Judge. It may well be that the judge’s primary findings of fact have a considerable bearing on the outcome of this appeal and it was necessary therefore for Miss Elizabeth Ann Gumbel Q.C., who appeared for the appellant, to raise a challenge to some of those findings. It is also essential that the facts are seen in the context of the short period of time during which decisions fell to be made and are not considered simply with the benefit of hindsight.

The importance of this can be seen from a very brief overview of the facts. The appellant was a young woman of 22 when she gave birth to her first child B on 11^th October 2008. She had herself had a difficult childhood and was unsurprisingly an anxious mother and had suffered from post natal depression. On 22^nd December 2008 she alerted the emergency services to the fact that the child had stopped breathing and he was forthwith admitted to Eastbourne General Hospital accompanied by his mother. The medical staff two days later thought B fit for discharge but there was a concern that the mother had reported two incidents of the child stopping breathing. Not only had no-one else seen any such incident but no explanation for it could be found. The consultant was anxious lest he had encountered an example of factitious illness and, as was his duty, he notified social services; under the procedures known generally as Working Together, the police were also informed.

In fact B remained in hospital till the 29^th December with the mother spending the day with him but being required to go home at night as the necessary supervision facilities were not available. On the 29^th December B was removed from the hospital and from the mother by the police pursuant to Section 46 of the Children Act 1989 (the Act) into foster care. At an inter-partes hearing before the Family Proceedings Court on 31^st December 2009 the mother agreed to go with B into a mother-and-baby unit. The assessment there was positive, the mother and child returned home, proceedings were discontinued and have not been re-instated.

It is wholly unsurprising in those circumstances that the appellant should feel aggrieved at having been under suspicion of factitious illness, at having her child removed from her for two days and at having to attend a mother-and-baby unit. Nor indeed is it possible for anyone to feel other than sympathy for her plight. On the other hand child protection is just that. It is protection from the consequences of perceived risk. There will be cases, as here, where either the risk was incorrectly perceived or did not eventuate. That of itself does not mean that protective measures were wrongly taken. It merely illustrates the price that sometimes has to be paid for having a child protection system and it is unfortunate that it was exacted from this appellant and her son. Nevertheless, because child protection powers can have draconian consequences, it is essential that they are exercised lawfully and proportionately. It was this issue that the learned judge was called upon to address.

It is therefore necessary to return to the events of December 2009 (and especially the 29^th) in a little more detail. For the purposes of the task conferred upon HHJ Coltart, the facts had to be considered as they appeared (or should reasonably have appeared) to the decision makers.

Originally, as I have said, the child was ready for discharge on the 24^th but was in fact kept in hospital. Two episodes occurred which the medical staff could confirm but the anxiety remained. Matters come to a head on 29^th December 2008. B was ready for discharge; the mother wanted to take him home; the consultant was unwilling that the mother should care for the child unsupervised medically; social services and the police convened a strategy meeting to decide on the way forward. The mother had a solicitor available to her on the 29^th but we do not know his experience in the field of family law. There were of course no orders in place and given that the child was ready for discharge, there was no legal restraint on the mother removing the child forthwith. That was the context in which decisions had to be made. The decision that was in fact made was to institute proceedings under the Act (and later an inter-partes hearing two days hence was arranged) but in the meantime to remove the child under the powers conferred on the police by Section 46 of the Act. The child was removed, the mother knew not where though she did have contact the following day. Were these actions in these circumstances lawful and proportionate?

If the local authority were to take action to remove the child, they had three options available to them: first, they could have obtained the mother’s agreement to accommodate B under Part III of the Act; secondly they could have sought from the Family Proceedings Court (ex parte or inter partes) an Emergency Protection Order (EPO) under Section 44; or thirdly they could leave the police to act as they did. It is, of course, incumbent on the local authority where practicable to act in partnership with a parent and to devise a process (whether by supervision, retention in hospital or removal) which commands at least the acquiescence of the parent. That accords both with the spirit of the Act and with Convention requirements of Proportionality.

It did not appear that there was a significant dispute between the parties as to the law applicable in this case. It was common ground that guidance was to be had from the decision of this Court in Langley -v- Liverpool City Council [2005] EWCA Civ 1173; [2006] 1 FLR 342. The first judgment is that of Dyson LJ (as he then was) who sets out the statutory regimes pointing out that an EPO under Section 44 is an order of the court whereas powers exercised under Section 46 are not. At paragraph 37 he explains the different consequences of each approach and then at paragraph 38 says this:-

“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”

He then adds at paragraph 40:-

“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 regards to the paramount need to protect children from significant harm.”

Further, Dyson LJ draws attention to Home Office Guidance, especially paragraphs 14 and 15 of Circular 44/2003. It is clear from this case that where practicable a local authority in an emergency too pressing to obtain an interim care order (ICO) should proceed by EPO rather than pursuant to Section 46. This issue was, of course, clearly before the learned judge.

It was the appellant’s case at trial that had the ESCC applied for an EPO they would have been unsuccessful. The parties were in accord that for the purposes of considering this issue the law is as stated by McFarlane J in Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam); [2006] 2 FLR 701. In particular he there approved the 14 factors referred to by Munby J (as he then was) in X Council -v- B (Emergency Protection Orders) [2004] EWHC 2015 (Fam); [2005] 1 FLR 341. McFarlane J also adds some observations about cases involving induced or fabricated illness. Such applications must be made in liaison with the child’s medical consultant and he adds this:

“[101] (l) cases of fabricated or induced illness, where there is no medical evidence of immediate risk of harm to the child, will rarely warrant an EPO.”

All the more should this apply to an exercise of power under Section 46.

Those decisions of Munby and McFarlane JJ have become well recognised as the basis of a proper approach to EPOs in the family justice system and in my respectful opinion they have been rightly so accepted. It is apparent from this that the strength of the case for an EPO (or the use of any emergency power) would greatly depend on the evaluation of risk of harm (and the consequential degree of harm) as made by the medical consultant namely Dr. Brent the resident consultant paediatrician.

It was essential for the learned judge (and remains so for this Court) to consider the assessment of Dr. Brent. In fact Dr. Brent reduced his views into writing in a letter dated 29^th December 2008. Whilst the letter itself was not available to the strategy meeting, it is not suggested that any material information contained in it was not so available. Dr. Brent set out his overall positions as follows:–

“It is my opinion that at this time, with the information available to me, that it would not be advisable for B to go home with his mother A with no supervision other than that from members of A’s family. I believe that there is a significant possibility that B might suffer significant harm. By my use of those words, I of course do not mean that I believe that the risk is greater than 50%, nor that it is anywhere near 50%. However, I do not believe that the risk is zero or sufficiently near zero for it to be discounted. I believe that B would benefit from a further period of close and safe supervision, so that more information can be gathered about B’s wellbeing, and about the social, medical and psychological circumstances surrounding him. I of course understand that it is more likely than not that in the future it will be concluded that B can safely go home with A, but I do not believe that that decision can safely be made at this stage with the information currently available.”

He then records five events of concern as well as others which are manifestly innocent. He then relates certain information given to him by the appellant which is at variance with the medical records and sets out the appellant’s history as is known to him, He then sums up his views as follows:-

“My concerns are that there are inconsistencies in the descriptions which A has given, and significant inconsistencies between what I and others have been told by A, and what is independently recorded. Although it is of course possible that A has indeed witnessed what she is describing, and has merely perhaps been concerned by events which have occurred but which are not serious, I cannot discount the possibility that some or much of the information has been fabricated. This, combined with some worrying aspects in the past medical and social history, lead to my opinion that I cannot say that there is either no, or a negligible, risk of the possibility of significant harm occurring to B were he to be returned at this stage to A and her home, with no supervision other than that from her family.”

Those views clearly required the closest attention from ESCC and all those involved in the strategy meeting.

At the same time the strategy meeting was told that the mother was being ‘unco-operative’. This seems to have involved two things: first, she was making it clear that she would wish to take B home with only family support or supervision; and secondly at one point she had “kicked off” and had made threats to take B. It is perhaps unhelpful to debate the words used; what was clear was that there was no agreement not to exercise her otherwise lawful right to remove the child. The crucial passage in the learned judge’s judgment on this is at paragraph 21 where he says –

“One asks the question rhetorically: what would have happened so far as B is concerned whilst those matters were being pursued, if that was to be the only course open left to social services and the police? They could not have stopped the mother walking out of the hospital at 4 o’clock with the child. They would not have necessarily known where she would have gone to. They would have had no means of keeping any sort of tabs on her, and by the next day, especially bearing in mind that she had been aware of the reason for the concerns, namely a fabricated illness, it is not beyond the bounds of possibility that she would have made herself scarce from the authorities. I am not saying that that necessarily would have happened, but it is clearly a possibility. So it seems to me that social services and the police were faced with the problem that they had a mother who was expressing the view that she was not going to cooperate any longer with the arrangements that had subsisted since the 24^th, and that she was intending to leave, and in those circumstances, given the doctor’s evidence that it would be unsafe to allow that to happen, could they afford to let the matter wait until a family proceedings court could be convened? In my judgment, they could not. This was a matter that was made absolutely urgent by the expressions of the mother to remove the child from the hospital. In fact, it seems to me that social services achieved an extremely creditable result by arranging for an on notice application to be heard on the 31^st. They made provision for contact between the mother and B during the intervening day, and by the time the matter did come to court B was separately represented and the mother had the benefit of both solicitors and counsel. I cannot think that that could possibly be described as being other than within reasonable time, as set out in Article 6.”

The question is: was that a view which on the evidence HHJ Coltart was entitled to take?

Despite Ms. Gumbel’s attractive submissions to the contrary, I have reached the clear conclusion that this was a view entirely open to the judge on the evidence he had before him. He has, just as he should have done, assessed the evidence on the basis of what the decision makers knew (and reasonably should have known) at the time that they had to make decisions. It is easy, in the light of what is now known about the appellant, to underestimate the magnitude of the risk (and its consequences were it to come about) as reasonably it would have appeared to them at the time. There has been now for some time heightened public concerns about child protection and it is not right to criticise ESCC for taking what with the benefit of hindsight might appear an unduly cautious or even heavy approach. In my judgment ESCC were entitled to conclude that the exercise of statutory powers was necessary to protect B.

That then leads to the question as to the route that should have been taken. The judge found as appears above that it was impractical to convene a Family Proceedings Court and that thus they were entitled to seek the exercise of powers under Section 46. Ms. Gumbel submits that that finding is not supported by the evidence. She submits that since this was towards the late afternoon of a working day, albeit in a holiday period, and that both the mother and her solicitor were at the hospital, it should have been possible to convene an out-of-hours hearing at which at least the mother’s solicitor could have been heard. For the purposes of this appeal information was supplied by the Deputy Justices’ Clerk in a letter dated 8^th April 2010. That describes the system available, involving numerous phone calls and satisfying the Legal Advisor of the need for an out-of-hours hearing and saying “… it may take a long time” meaning hours rather than days. The Deputy Clerk was unable to say without knowing the specifics of the case when an inter-partes hearing for an EPO could have been set up. In fact a full inter partes hearing for an ICO was arranged for 31^st December.

It is beyond argument, on the authority of Langley, that an application should have been made for an EPO rather than exercising powers under Section 46, were it reasonably practical so to do. The learned judge held that it was not and, as appears from that passage in his judgment quoted above, he so held because of his assessment of the urgency of the situation with which ESCC reasonably and honestly believed they were confronted. It is that assessment which lies at the heart of the question as to whether the conclusion of the learned judge can be supported. Once again, it is essential to see this, not as hindsight might dictate, but as it appeared to decision makers on the ground.

In my judgment the learned judge was entitled on the evidence as a whole to reach the conclusion that he did. He has set out in the passage quoted his assessment of risk. That is necessarily based on the views of Dr. Brent whom no-one has suggested is other than a responsible and competent consultant paediatrician. He was conveying a clear view that it was not safe for this child at that point to go home. The mother was wanting to take him home and was entitled there and then to do so. In those circumstances the judge was entitled to conclude that the position was such that some immediate action was required and that that precluded an application for an EPO.

Section 46(1) of the Act provides as follows:-

In these circumstances it is unnecessary to express a concluded view as to whether an application for an EPO would or would not have been successful. Suffice it to say that any magistrate or Bench applying the guidelines to which I have referred and giving due weight to Dr. Brent’s views would in my judgment have been entitled to grant an EPO; whether or not they would have done so is necessarily a matter of speculation.

Accordingly, whilst I have taken the view that permission to appeal should be given, in my judgment the appeal itself should be dismissed. I fully recognise that the appellant has been subjected to distressing experiences that with the benefit of hindsight can be seen as probably unnecessary. Although the judge did not assess damages, there was no dissent from his view that they would be “relatively modest.” Sadly the experiences of the appellant simply illustrate the truth that viable child protection procedures in any society will sometimes inflict what turns out to have been unnecessary distress on families. That does not make them or the exercise of them thereby unlawful.

However, whilst I am satisfied that the judge was on the evidence entitled to take the view that what occurred was in the circumstances neither unlawful nor disproportionate, I am left with the distinct impression that things could have been handled rather better than was in fact the case. It may therefore be helpful to indicate what sort of approach should be taken in circumstances such as these which, though fairly unusual, will be familiar to any experienced child protection practitioner.

It is essential to stress that even in an emergency it is desirable, where possible, to work in partnership with a parent. Parents can with careful and sympathetic explanation be brought to agree to regimes of supervision, or to the child remaining in hospital or even to voluntary accommodation under Part III of the Act for a brief period. Where parents have access to a solicitor (particularly where, as here, he or she is available), then the solicitor should be apprised of the local authority’s concerns and proposals and then be invited (if the solicitor thinks it proper to do so) to give advice to the parent. Even where emergency powers are obtained under Section 44 or exercised under Section 46, least interventions are best. For example the police have power to prevent a removal from hospital. In the circumstances of this case it would have been surprising had the hospital if pressed refused to keep the child for an extra two days. The removal of the child to a known destination (e.g. a relative) is to be preferred to removal to a stranger. If, however, there is removal to a stranger, the parent should, in the absence of good reason (e.g. abusive or irrational behaviour) be informed of the fact and be allowed to pass relevant information to the carer and speedy arrangements be made for contact. If a court order has not been obtained or obtained ex parte, an inter partes hearing should be arranged as soon as possible. The learned judge described a hearing two days hence as ‘creditable’ but it should also be the norm. It goes without saying that where practicable an order of the court should be sought in preference to the use of Section 46 powers.

In the context of this case, and assuming that it was practicable, more discussion between social worker and mother, involving her solicitor, may have led to some resolution. Even where the local authority decide to seek or exercise compulsive powers, it would have been helpful to have explored whether, pending an inter partes hearing, B could have remained in hospital. None of this is intended to cast doubt on the propriety of the learned judge’s conclusions but only to suggest ways in which a job lawfully done might have been better done. The merits of such an approach are not only to cause the least disruption to the child and the least distress to the parent but to mitigate the inevitable hurt where, as here, it all turns out to have been probably unnecessary.

Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow. If they take action which ultimately turns out to have been unnecessary, they will have caused distress to an already distressed parent. On the other hand they are also invested with or have access to very draconian powers and it is vital that, if child protection is to command public respect and agreement, such powers must be exercised lawfully and proportionately and that the exercise of such powers should be the subject of public scrutiny. This litigation demonstrates that child protection only comes at a cost: to an innocent parent who is subject to it based on emergency assessment of risk and to public authorities who have had to account in a judicial setting for their exercise of power. It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state.

I agree with Mr. Justice Hedley that this appeal should be dismissed for the reasons which he gives.

This is not a claim about the welfare of the child. All three parties are publicly funded. The costs to the public purse (approximately £80,000) exceed by an order of magnitude the modest damages which were in issue. Litigation of this nature hardly represents a wise use of public funds.

I agree.