G, R (On the application of) v Nottingham City Council

On 30 January 2008 I made a peremptory order requiring a local authority and a hospital forthwith to reunite a newly-born baby with his mother. The hearing took place in open court and attracted widespread media attention. In the circumstances, and because the point at issue is one of fundamental importance, it is right that I now explain the background to the application and why I made the order.

G was born on 31 May 1989, so she is 18 years old. She has had a sad and troubled life. She has been in the care of Nottingham City Council. She has a history of alcohol and drug abuse. She has self-harmed. She is a very vulnerable young adult. In 2007 she became pregnant. The baby was due to be born on 3 February 2008.

The local authority accepts that, although she is no longer a child – in the eyes of the law she is now an adult – G is entitled to look to the local authority for continuing support under the leaving care legislation. That legislation requires the local authority to carry out appropriate assessments and to produce a pathway plan identifying the young person’s needs and the financial, practical and other support which the local authority is proposing to provide as she makes the transition into adult life from having been a child in care.

The pathway plan has to be in accordance with regulation 8 of the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874, and must, in particular, include the matters referred to in the Schedule to the Regulations.

Many children who have been in care suffer disadvantages of many kinds, and G is no exception. Indeed, her problems are vastly greater than many. So a pathway plan is always a vital tool – in G’s case a more than usually vital tool – in helping the transition to independent living as an adult.

In G’s case her lawyers took the view that the pathway plan which the local authority had prepared for her was deficient and inadequate, so deficient and inadequate, they assert, that it is unlawful: see R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860. That complaint, I emphasise, has not yet been adjudicated.

An application for judicial review was issued in the Administrative Court on 18 January 2008 accompanied by an application seeking urgent consideration. The papers were put before Davis J on 21 January 2008. He directed an interim hearing, to be listed not before 30 January 2008 so as to give the local authority at least some time to respond. In accordance with that order G’s application for permission to apply for judicial review and for urgent interim relief was listed before me in the Administrative Court for hearing in the usual way in open court on Wednesday 30 January 2008.

Unexpectedly, and, as it happened, the day before the judicial review proceedings were due to be heard, the mother went into labour. She gave birth in the small hours of Wednesday at about 2am. Her son was born seemingly healthy and well. At about 4am her son was removed from her and placed in a different room in the hospital.

The application for judicial review came on for hearing before me later that morning. Mr Ian Wise, appearing for the mother, told me that he wished to make an application for an immediate order that the mother and her son be reunited. Their separation, he said, was unlawful, having been done without any legal authority and in breach of the rights of both the mother and the baby under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 requires all public authorities to “respect” the family and private lives of individuals.

I adjourned briefly to enable Mr Bryan McGuire, who appeared for the local authority, to obtain instructions and to produce any documents that might throw light on what had happened.

When the case resumed I was shown a number of documents. Two in particular were important.

The first was the minutes of an inter-agency child protection conference which had taken place on 18 December 2007. The minutes record the conference recommendation, inter alia, that the local authority “apply for an Interim Care Order once the child is born [and] organise a care placement for when the child is born”. They recite that “the birth plan for the baby is to remain in hospital until he is taken into foster care”, further noting that

“the baby must not be removed from the ward by [G] … if necessary an Emergency Protection Order should be sought if the Interim Care Order is not in place.”

The minutes further record the recommendation that what was described as “details of the agreed birth plan” be sent to all hospitals in the region.

The other document was the ‘Birth Plan’ prepared for the medical staff at the hospital by Nottingham City NHS Primary Care Trust. Referring to the child protection meeting that had been held on 18 December 2007, the Birth Plan said that “Baby is to be placed in foster care.” In relation to delivery in hospital it said “please discuss with [G] at delivery if she wishes to see or hold baby.” It continued:

“Baby will be removed at birth and there will be no contact without supervision … The baby will not … be left in her sole care … Further contact with baby on the ward will be supervised by Social Services.”

There was no reference in that document to obtaining any emergency protection order or interim care order. So the need for one or other of those steps to be taken if the child was to be removed from G was not brought to the attention of the midwives and other medical staff to whom the document was addressed.

Mr McGuire realistically accepted that he could not, as a matter of law, justify what had happened. Accordingly I made an order (see below) that G and her son be reunited. I was subsequently told that within minutes of my making that order they were indeed reunited – shortly after mid-day the same day.

The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step: either an emergency protection order in accordance with section 44 of the Children Act 1989 or an interim care order in accordance with section 38 of the Act or perhaps, in an exceptional case (and subject to section 100 of the Act), a wardship order made by a judge of the Family Division of the High Court.

Section 46 of the Children Act 1989 permits a police constable to remove a child where he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm, and that power can be exercised without prior judicial authority. But the powers conferred on the police by section 46 are not given to either local authorities or social workers.

Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.

As I said during the course of the hearing, no baby, no child, can be removed simply “as the result of a decision taken by officials in some room.”

This is all elementary. It is well known to all family lawyers. And it is, or ought to be, well known to all social workers. That is why, as the media accurately reported, I made the comment during the course of the hearing that “The professionals involved in this case should have known better.” I went on to point out, however, that the midwives and doctors in a delivery room in the small hours could not have been expected to understand this. No doubt they acted as they did in accordance with the ‘Birth Plan’ that had been given to them by their superiors.

Lest this judgment be misunderstood, I should make clear that what I have said is subject to two qualifications.

In the first place, a social worker or a nurse is of course entitled to intervene if that is necessary to protect a baby from immediate violence at the hands of a parent. That is not, however, because they have any special power or privilege entitling them to intervene. It is merely an application of the wider principle that anyone who happens to be present is entitled, whether by restraining the assailant or by removing the defenceless victim from his assailant’s reach, to intervene in order to prevent an actual or threatened criminal assault taking place before his very eyes. Hence the observation I made that “You cannot remove children, short of immediate murderous intent, except by lawful means, which means either by a police officer or court order.” There is, of course, no need to show murderous intent. Any threat of immediate significant violence is enough, particularly if it involves a young child.

But in the present case, as I observed, and I was not gainsaid by Mr McGuire, there was no suggestion that any risk the mother was posing to her son was a risk of exposing him to immediate physical attack or physical harm.

The other qualification arises out of section 3(5) of the Children Act 1989, which provides that:

“A person who –

(a)

does not have parental responsibility for a particular child; but

(b)

has care of the child,

may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.”

Now section 3(5) could not avail the local authority, because it did not have the “care” of G’s son. But there might be circumstances in which a hospital could rely upon section 3(5) as justifying action taken in relation to a child in its medical care, despite the absence of parental consent and the absence of any court order.

For instance, medical intervention might be required in order to preserve the child’s life or to protect a child from irreversible harm in circumstances of such urgency that there is not even time to make an urgent telephone application to a judge. In such a situation of emergency a doctor can act without parental or judicial consent and, if parents are acting unreasonably or contrary to the child’s best interests, even despite a parental refusal of consent: see Grubb, Principles of Medical Law, ed 2, para 4.21.

Doctors, midwives and nurses do not have to stand idly by waiting for a court order if, for example, a premature baby desperately needs to be put in a special unit or placed on a ventilator. They are of course entitled to separate the child from the mother if medical necessity dictates, and even if she objects. Law, medical ethics and common sense march hand in hand.

But in the present case there was no question of any medical justification for the intervention, let alone any medical emergency. G’s son was removed simply because of the ‘Birth Plan’.

It was apparent from what Mr McGuire told me and from the documents he produced that the local authority was about to make an urgent application to the family proceedings court for either an emergency protection order or an interim care order. That did not particularly surprise me, but it did not, of course, have any bearing on the legality or otherwise of what had already happened. However, it did mean that the time might come – and might come very quickly – when the local authority would have appropriate judicial authority to separate G from her son.

Mr Wise, having very much in mind what was said in Re M (Care Proceedings: Judicial Review) [2003] EWHC 850 (Admin) [2003] 2 FLR 171, acknowledged that I should not make any order which had the effect of preventing the local authority applying for such an order and that I could not make any order which would have the effect of preventing the implementation of any emergency protection order or interim care order that might be made. Mr Wise was right to make those concessions and to agree that they should be reflected in the order I made.

Accordingly, I made an order that:

“provided that there is no lawful authority for the separation of [G] and her baby and provided that [G] remains at the Nottingham City Hospital, the [local authority] and the Nottingham City NHS Trust do forthwith take the necessary steps to reunite [G] and her baby.”

The purpose of the first proviso was to ensure that my order would not prevent any lawful action taken by a police constable in accordance with section 46 of the Children Act 1989, any lawful action taken by the hospital consistently with section 3(5) of the Act, or the implementation of any emergency protection order or interim care order that might be made. The purpose of the second proviso, which Mr Wise was willing to agree, was to avoid a situation where the local authority might feel compelled to invoke the assistance of the police with consequences that might not be what G would wish.

Later the same day I considered G’s application for judicial review and gave directions in relation to the future conduct of those proceedings. I need not go into those matters here, save to emphasise that there has as yet been no judicial adjudication in relation to G’s complaint about her pathway plan. That is a matter for another day.

I have explained how this application came to be made in open court. It so happened that the Press Association reporter was in court. I do not know why he was there. It is not by business to inquire. The Administrative Court, like most of the Queen’s courts, is open to the public. Anyone is free to enter, watch and listen.

The Press Association reporter will be well-known to all who practise or sit in the Royal Courts of Justice though few I suspect will know his name. He has sat in our courts for many years. He epitomises the court reporter of whom Sir Alfred Denning wrote (The Road to Justice, 1955, page 64, quoted by Watkins LJ in R v Felixstowe Justices ex p Leigh [1987] QB 582 at page 591):

“He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice.”

Sir Alfred added:

“If he is to do his work properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind locked doors.”

As Lord Steyn has reminded us (see R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126), freedom of speech is not just intrinsically important, it is also instrumentally important:

“freedom of speech … acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.”

Those words might be thought to have a powerful resonance in the circumstances of the present case.

As one would have expected, the story that went out over the Press Association wire was fair, balanced and accurate. It caught the attention of the media, producing the front page story in at least one national newspaper the following morning.

In the context of current debates about access to and reporting of proceedings in family courts, it is salutary to think about what would have happened if the application, instead of being made to the Administrative Court, and therefore in public, had been made to the Family Division urgent applications judge, and therefore in private. Would the media ever have learnt what was going on? And if they had, what then? Perhaps much time would have been taken up dealing with an application by the media that the court should sit in public: cf Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146. This is all speculation. But it gives food for thought.

There is one final matter I should mention. It was suggested at one point by Mr Wise, though the suggestion may have originated elsewhere, that I might wish to comment on the accuracy or otherwise of some note of the proceedings which I understood was being prepared. I declined to do so, essentially for the reasons I had given in somewhat similar circumstances in Norfolk County Council v Webster [2006] EWHC 2898 (Fam), [2007] 2 FLR 415, at paras [45]-[51].

This judgment was finished on the morning of Friday 1 February 2008.

The day before, Thursday 31 January 2008, the local authority had made an application to the family proceedings court in Nottingham for an interim care order in respect of G. That application was transferred by the family proceedings court to the Nottingham County Court. The hearing before His Honour Judge Inglis began the same day, Thursday 31 January 2008, and continued the following day, Friday 1 February 2008.

Later that day, Judge Inglis made an interim care order.