A Father v SBC & Ors

This appeal raises the question of how the court should determine an application by parents for an injunction under the Human Rights Act 1998 to prevent a local authority removing their child who is living at home under a care order.

D was born on 11^th December 2011 and is therefore now aged 2 1/2. His mother was assessed in 2012 as being on the borderline of a mild learning disability. His father was found to have a more significant cognitive impairment, with an IQ of around 50. In the earlier proceedings described below, a psychological assessment concluded that he lacked capacity to conduct litigation. He has, however, managed to function successfully in his adult life, with some assistance from local authority adult social services. He has worked in the same job for over 12 years and has been contributed towards the financial support of the family.

When D was born, the local authority started care proceedings under s.31 of the Children Act 1989. After he was discharged from hospital, D and his parents underwent a 16-week residential placement in a local authority foster placement which was completed successfully. Afterwards, the family moved into a new home with a package of support from the local authority and other agencies. They have extended family on both sides to whom they are close, and a network of friends. They attend a local church. In the summer of 2012, the parents were married.

At the final hearing of the care proceedings, the local authority’s care plan, dated recorded that D had been in his parents’ care since birth and was settled, happy and developing. It recommended that D remain in their care under a full care order. That order would be subject to review after a year when it was thought it might be appropriate to move to a supervision order. The plan specified the level of professional support to be provided for the family. It further provided that, if the placement broke down, D would move initially to a foster placement. The local authority would then carry out a viability assessment of his maternal grandparents to see if they were able to look after him, although an assessment carried during the care proceedings had concluded that they were not.

The care plan was endorsed by the children’s guardian. In her final report, she indicated that, while she supported what she described as the local authority’s “courageous attempts” to try to enable D to be looked after his parents, she was “not yet entirely confident that they will be able to provide D with the safe, emotionally attentive care that he will need on a long term basis.” She identified “a number of risk factors in D’s care circumstances which can be monitored but not removed or effectively counteracted by the considerable support and monitoring resources that have been and are continuing to be provided.” She thought that, as D becomes more mobile, these risk factors would be more difficult to manage.

On 7^th November 2012, District Judge Cronin made a care order on the basis of the local authority’s care plan. The order included an undertaking by the local authority not to remove D from the care of his parents without giving 7 days notice in advance, unless an emergency situation should arise.

Thereafter, D remained at home for 18 months. The local authority social worker now says that, during this time, she became increasingly worried about aspects of his care. There have been growing concerns about D’s slow developmental progress to a point whereby the local authority was no longer confident that he would develop as hoped and reach his full potential while in his parents’ care. The social worker noted that the parents did not always respond to D’s cues. She thought that he was not receiving the reassurance and encouragement he needs and was left to try to work out boundaries for himself. There have been concerns about his walking into the road, taking a knife from the kitchen worktop and jumping off furniture. The social worker observed that D is indiscriminate about whom he approaches to meet his needs. She thought that D’s parents did not provide him with enough appropriate stimulation. There has also been some concern about his excessive weight. He has been observed by professionals in the home hitting, throwing and shouting. The social worker concluded that D could potentially be at risk of physical harm because of the failure on the part of his parents to recognise risk so that they are unable to predict potential dangers. Her evidence is that they need constant prompting and guidance on safety in and out of the home. Furthermore, she reports that it has become increasingly difficult to discuss D’s safety and care issues with his parents who have become distressed when she has broached this subject. It is said that these concerns are shared by the local authority independent reviewing officer.

As a result, the local authority concluded that D should be removed from his parents’ care. As the social worker continued to have concerns on the viability of placing him with his maternal grandparents, it was decided that upon removal from his parents D should be placed with foster carers. The local authority proposed that, after his removal, he should have contact with his parents once a week for two hours.

On 19^th March, the social worker gave the parents a letter setting out the local authority’s concerns and informing them that a planning meeting would take place on 27^th March to talk about moving D into foster care. The parents attended the meeting at the local authority to discuss the issues but this was terminated when they became distressed. Following that meeting, on 31^st March, the local authority gave notice to the parents that they intended to remove D on 25^th April.

The remedy available to parents in these circumstances is to apply under s.39 of the Children Act for the discharge of the care order. But this remedy is not straightforward. A parent whose child is subject to an application for a care order under s.31 is automatically entitled to legal aid, irrespective of means. Not so a parent whose child is living at home under a care order and who wishes to challenge a local authority’s proposal to remove the child. Because the father works, and therefore has a small income, he and the mother are not entitled to legal aid. In the current case, these difficulties are compounded because the father lacks capacity, and it is therefore necessary to invite the Official Solicitor to represent him as litigation friend. The Official Solicitor’s resources are under great pressure and as a result there are often delays in his responding to such invitations.

A further difficulty is that the application for discharge of a care order is a blunt instrument. If the application is contested, the care order can only be discharged after the preparation of reports and other evidence and a full hearing. This does not provide an interim remedy for parents where the local authority proposes to remove the child immediately without waiting for the determination of the discharge application.

The father consulted his former solicitor, Rebecca Stevens of Messrs. Withy King, who, having applied unsuccessfully for public funding, agreed to represent him pro bono. On 11^th April, she filed an application on his behalf for the discharge of the care order. The application was supported by a statement signed by the father. At that point, the solicitor had applied for, but not received, a further psychological assessment and took the pragmatic approach that she could for the moment act on the father’s instructions. She therefore requested an early hearing date. The application was allocated to the county court and listed before a district judge. Directions were given for the local authority to file a statement by 23^rd April “setting out their initial proposals” and to CAFCASS to appoint a guardian, who was given permission to file a position statement on the day of the hearing or otherwise present an oral report to the court. On 22^nd April, the local authority filed an application for a recovery order under s.50 of the Children Act. The grounds for seeking this order were that the parents had repeatedly said words to the effect that they would not allow the local authority to take D, and it was the intention of the authority to remove him from his parents on 25^th April.

On 24^th April, the social worker signed a statement setting out the basis on which the local authority had decided to remove the child. I have already summarised her concerns which were set out in the statement. I understand that the statement was available to the parents and their representatives unsigned on 23^rd April. The guardian who had represented D at the earlier care proceedings was reappointed and duly supplied a position statement in which she supported the local authority proposal to remove D. She reported that she had visited the home on 23^rd April and found that the tension was elevated because the family were extremely frightened and anxious about having the previous professionals involved with the family once more. The guardian was concerned that, as a result of the enhanced anxieties, the parents were now even more distracted from looking after D than they had been before. Following her visit, she was very worried that, if D were left within the home pending the outcome of the proceedings, he may come to some physical harm due to the loss of attention and concentration by the parents who were preoccupied with the proceedings.

The hearing on 24^th April took place before District Judge Goddard. The guardian was not present at the hearing. I have a note of the judgment approved by the judge and a note of the hearing which has neither been approved nor completely agreed by the parties. According to this latter note, the District Judge suggested at the outset of the proceedings that the father should have applied for an injunction. After an adjournment to consider this option, the father’s solicitor, supported by the mother’s solicitor, applied orally for an injunction under s.8(1) of the Human Rights Act 1998 (“HRA”), and cited the decision of the Court of Appeal in Re H (Children) (Care Plan)[2011] EWCA Civ 1009. The solicitor submitted that it was not fair to remove the child before a full hearing to determine whether that course was in the child’s best interests. She invited the court to list the matter so that the guardian could attend so that the parents could challenge her views.

According to the unagreed note, the judge indicated that he thought the current case was distinguishable from Re H. He noted that there was no emergency situation but, in the absence of the local authority agreeing to some breathing space and not pursuing the removal, he felt he was being asked to go behind the care order which he felt he could not do as it had not been appealed. He asked the local authority whether they would agree to a breathing space. Having taken instructions, their counsel confirmed that there concerns were so great that they remained of the view that the child should be removed. The judge indicated that, when considering whether to grant relief as provided under s.8 HRA, he would need to consider the likelihood of the father succeeding in his discharge application.

After hearing further submissions from the father’s solicitor on the application for an injunction, the judge said that he did not need to hear from the local authority or the guardian in respect of that application because he assumed that they were both opposed to this. He refused an application to hear oral evidence. The father’s solicitor pressed the judge to re-consider the case of Re H, which he agreed to do during a further adjournment. When the parties returned to court, according to the note provided to me, the parties stated that they agreed that the case law confirmed that the court had the ability to grant injunctive relief. Counsel for the local authority concluded the hearing, however, by stating that, under s.8 of the Human Rights Act, the court would have to find that the act being proposed by the public body was unlawful. The court in November 2012 had authorised the care order and, when the care order was made, the responsibility for the child was removed from the court and passed to the local authority. The parties’ human rights had been considered at that point.

In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

On the following day, D was removed from his home with, I am told, the parents’ co-operation. Thereafter, the local authority offered contact on two days per week as opposed to the original plan of one day a week, although in the event, only three visits have taken place because D has had chicken pox.

On 29^th April, the father’s solicitor filed a notice of appeal. The grounds of appeal settled by Miss Deirdre Fottrell of counsel (who has also acted pro bono at the hearing of this appeal) are as follows.

By direction of the Designated Family Judge, HH Judge Marshall, the application for permission to appeal, and, if granted, the appeal itself, were listed before me on the first available date, 15^th May, later adjourned until the following day 16^th May.

Under s.17(1) of the Children Act 1989,

Under s.33(1) of the Act:

have parental responsibility for the child and

have the power (subject to the following provisions of this section) to determine the extent to which

a parent, guardian or special guardian of the child; or

a person who by virtue of s.4(a) has parental responsibility for the child

Under s.34(4), however,

Furthermore, under s.39(9):

The European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) was incorporated into the law of England and Wales by the HRA. Under article 8 of ECHR,

Under s.6(1) of HRA, it is unlawful for a public authority to act in a way which is incompatible with a right under ECHR. The local authority is a public authority. In exercising its powers under a care order, the local authority must therefore comply with its obligations under Article 8 not to interfere with the rights of the child and his parents to respect for their private and family life.

Previous decisions have identified that the local authority’s duties under Article 8 are not confined to substantive obligations to refrain from inappropriate interference with the rights to family and private life but also incorporate procedural safeguards. The procedural element includes the duty to ensure that the processes by which decisions about children are made are fair and that the parents (and the child, depending on his age and level of understanding) are sufficiently involved in that process: see Re L (Care: Assessment: Fair Trial)[2002] EWHC 1379 (Fam)[2002] 2 FLR 730, Re G (Care: Challenge to Local Authority’s Decision)[2003] EWHC 551 (Fam)[2003] 2 FLR 42, and Re W (Removal into Care)[2005] EWCA Civ 642[2005] 2 FLR 1022. As Munby J (as he then was) observed in Re G, Article 8

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

Under s.7(1) of HRA, a parent who claimed that a local authority has acted, or is proposing to act, in a way that is made unlawful by s.6(1) may either bring proceedings under the HRA or rely on the Convention right in any other legal proceedings. Under s.8(1)

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10[2002] 1 FLR 815 paragraph 49, that

Insight into the application of these principles in the context of a case where a child has been placed at home under a care order is found in the judgment of McFarlane J (as he then was) in G v N County Council[2008] EWHC 975 (Fam)[2009] 1 FLR 774. At paragraph 29 – 30 the learned judge observed:

Since that case, the decision of the Supreme Court in Re B[2013] UKSC 33 and the series of cases decided in the Court of Appeal in 2013 leading to the decision in Re B-S (Children)[2013] EWCA Civ 1146 have changed the landscape for decision-making about children who are the subject of care proceedings. It is now clear, in the words of Baroness Hale of Richmond in Re B, supra, at paragraph 215, that:

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children)[2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

His judgment contains a further error. In reaching his decision, he was plainly influenced by his view of the likelihood of the father succeeding in persuading a court in due course to discharge the care order. In my judgment, it was inappropriate of him to reach any view as to the merits of that application at such an early stage. Not all the written evidence had been filed. The mother, for example, had yet to file a statement. No witness had been subjected to cross-examination. As Miss Sprinz on behalf of the mother submitted in a short but insightful contribution during the legal argument, it cannot be right for the district judge to have relied on his view of the merits in the absence of the mother’s evidence when assessing the proportionality of the local authority’s proposal for immediate removal. Furthermore, as Miss Fottrell submitted on behalf of the father, the test was not whether the parents had a likely prospect of success on the discharge application but rather whether the injunction was necessary to protect the family’s Article 8 rights.

For these reasons, I conclude that District Judge Goddard’s decision to refuse the father’s application for an injunction under s.8 of HRA was plainly wrong. I therefore give permission to appeal and allow the appeal.

There remain two further important questions. The first is what order should now be made. The second is what can be done to prevent similar errors occurring in future cases.

As I indicated to counsel at the start of the hearing, and again in the course of argument, the question as to the appropriate order in light of the appeal being allowed is very difficult. It is established procedure, reiterated very recently by the Court of Appeal in MB v Staffordshire County Council and Others[2014] EWCA Civ 565 that, having concluded that an appeal should be allowed, the court “then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing” per Ryder LJ, ibid, at paragraph 29.

I do not think the district judge had sufficient information to reach a decision as to whether to grant an injunction lasting until the determination of the discharge application. If I had been in his position, I would have adjourned the application for seven to fourteen days, and considered transferring the matter to the Designated Family Judge for a contested hearing with oral evidence. The injunction application had only been made without notice in the course of the hearing. No evidence had been filed directed specifically at the question of whether D should be removed pending determination of the discharge application. A short adjournment would have allowed time for reflection and consideration of both facts and law. When granting that short adjournment, I would have asked the local authority to give an undertaking not to remove D until the adjourned hearing. If the local authority had refused to give such an undertaking, I would have made a short term injunction under s.8 to last until the adjourned hearing.

In my view, there now needs to be a contested hearing of the injunction application, with written and oral evidence directed to the question whether D’s welfare requires his immediate removal. Regrettably, it was not possible for this court to conduct such a hearing on 16^th May, because there was insufficient time, the necessary evidence had not been filed, and the guardian was not present. Furthermore, both the local authority and the guardian asserted that there is further evidence they wish to adduce to support removal. I therefore reluctantly concluded that this case would have to be remitted. I am extremely grateful that the Designated Family Judge, Judge Marshall, has found two days in her diary next week to hear the application. I will give directions for the filing of further evidence for this hearing.

I have thought long and hard as to whether I should make an interim injunction under s.8 HRA requiring the local authority to return D to his parents pending the adjourned hearing. Had I been hearing the application on 24^th April, I would have taken steps to ensure that D remained at home pending the full hearing of the injunction application. The situation has, however, changed. D has been away from home for three weeks. In my judgment, it would not be right to order his return to his parents now when he may have to be removed again in less than two weeks. Given the fact that he has been away from home for three weeks, and a contested hearing before Judge Marshall can take place in less than two weeks, plus the inevitable tension and stress that will continue in the period leading up to the next hearing, I do not consider it right to order his return prior to the hearing before Judge Marshall.

At that hearing, Judge Marshall will make the decision on the basis of the evidence then before her whether to require the local authority to return D home pending determination of the discharge application. It is, of course, right, as pointed out by McFarlane J in G v N County Council, supra, at paragraph 49 (drawing on an observation of Thorpe LJ in Re W (Removal into Care) [2005] EWCA Civ 642[2005] 2FLR 102 at paragraph 25) that:

On behalf of the local authority, Miss Griffiths, who did not appear before the district judge, informed the court that, as a result of the reduction in the time taken to complete care proceedings under the family justice reforms, there has been an increase in the numbers of care cases being concluded with a final care order on the basis of the child remaining at home. If so, there will inevitably be an increase in the number of cases where the local authority concludes that a child should subsequently be removed.

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

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

Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

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

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

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

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

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

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

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others[2011] EWHC 402 (Fam) and Wiltshire Council v N[2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.