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

This matter first came before me on 30 January 2008. Following that hearing I handed down judgment on 4 February 2008: R (G) v Nottingham City Council [2008] EWHC 152 (Admin).

I shall not repeat what appears in that judgment, save to note that it touched on three distinct matters:

So far as concerns the claim for judicial review, I set out (at paras [1]-[3]) the background to G’s claim, identified (at para [6]) the essence of the claim as being G’s complaint that the pathway plan which the local authority had prepared for her was so deficient and inadequate as to be unlawful, and indicated (at para [31]) that I had given directions in relation to the future conduct of the proceedings. Included in the order I made was a direction listing the matter before me on 18 February 2008 for a permission hearing, coupled with a direction that if permission was granted the substantive hearing would follow immediately.

So far as concerns G’s claim that she had been unlawfully separated from K, I set out (at paras [8]-[13]) the events which had triggered this complaint, recorded (at para [14]) the local authority’s concession that what had happened was unlawful, and explained (at paras [15]-[27]) why that concession was properly made.

So far as concerns the care proceedings I recorded (at para [28]) the intention of the local authority to commence care proceedings and, in a postscript, recorded (at paras [39]-[40]) how the care proceedings had been heard by His Honour Judge Inglis in the Nottingham County Court on 31 January 2008 and 1 February 2008 and how, on the latter date, those proceedings had culminated in the making by Judge Inglis of an interim care order. I should also record that those proceedings took place in private. But at the end of the hearing Judge Inglis approved the publication of a press release in the following terms:

“Under section 97 of the Children Act 1989 no person may publish material which is intended or likely to identify any child as being involved in proceedings under the Act. That provision of course applies in this case and nobody may publish such information.

There is information that the court is prepared to make public, provided that the restriction in section 97 as to anonymity is observed.

The court in these proceedings has not been concerned with the events which led to separation of [K] from his mother during the hours after his birth. Those events were considered in the High Court by Mr Justice Munby earlier this week.

The court in these proceedings is concerned with the welfare of [K].

The removal by court order of a child from the care of his mother soon after birth is a very grave step to take, and is to be taken only when the welfare of the child makes it necessary.

In this case the court has decided that the welfare of [K] requires that he lives in local authority foster care on an interim basis while further enquiries are made and assessments carried out. His mother will have frequent periods of contact with him each week.

When the further enquiries have been made the court expects to be in a better position later this year to make a decision about who should care for [K] and what part his mother and other members of his family should play in his future care.”

G sought permission to appeal against the order which had been made by Judge Inglis. That application came before the Court of Appeal (Ward and Wall LJJ) on 7 February 2008. G was granted permission to appeal. Her appeal against the making of the interim care order was dismissed but the Court of Appeal varied other aspects of the order made by Judge Inglis so as to facilitate a viability assessment which the Court of Appeal directed pursuant to section 38(6) of the Children Act 1989. Section 38(6) provides so far as material that:

“Where the court makes an interim care order … it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child”.

The principles upon which that jurisdiction is to be exercised have been authoritatively expounded by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576.

For reasons explained by Wall LJ in his judgment (see Re G [2008] EWCA Civ 86) the Court of Appeal transferred the care proceedings from the Nottingham County Court to the High Court and directed that the matter was to be listed before me on 18 February 2008 to consider, inter alia, whether or not I should direct a further assessment under section 38(6).

In the meantime matters had developed in relation to both G’s original claim for judicial review and her claim that K had been unlawfully separated from her:

Also on 15 February 2008 the viability assessment which had been directed by the Court of Appeal was filed. It recommended a residential assessment of G and K for four months at a well known institution in the South East at a total cost of some £63,500 with an additional cost of some £33,000 if K’s father was also to be included as part of the assessment.

Accordingly there came before me for hearing on 18 February 2008:

Separate counsel were instructed for the two sets of proceedings. In the judicial review proceedings G was represented by Mr Ian Wise and Ms Caoilfhionn Gallagher, the local authority by Mr David Lock and Ms Shona Rogers, and the NHS Trust by Ms Marina Wheeler. In the care proceedings the local authority was represented by Ms Rachel Rowley, G by Mr Brian Jubb, K (represented by his children’s guardian) by Ms Maria Mulrennan and K’s father by Ms Beryl Gilead. I am grateful to all counsel for their assistance.

By the end of the hearing agreement had been reached between all parties as to the orders I should be invited to make, both in the judicial review proceedings and also in the care proceedings. It is nonetheless important that I give a formal judgment explaining what happened and, more especially, why I made the orders I was invited to.

I do this not merely, as I commented at the end of the hearing, in the interests of transparency of the court process and because of the publicity the case has already attracted, but also for an important technical reason.

Amongst the orders I was invited to make in the judicial review proceedings were two declarations that the local authority had acted unlawfully. It was common ground that I should make those declarations, but it is fundamental that the court does not grant declarations by consent. If the court is to make a declaration the court has to be satisfied on the facts and as a matter of law that the declaration is one that ought properly to be made: see, for example, the judgment of Buckley LJ in Wallersteiner v Moir [1974] 1 WLR 991 at page 1029. I need, therefore, to explain why I was satisfied that I should make these declarations.

In what follows I shall deal separately with the judicial review proceedings and the care proceedings, as indeed I did on 18 February 2008.

I consider first the claim insofar as it relates to the alleged deficiencies in G’s pathway plan.

The relevant statutory scheme is to be found laid down in part in sections 23A-23C of and Schedule 2 to the Children Act 1989 and in part in the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874.

The scheme applies to every child who is, within the statutory meaning, an “eligible child” (see Schedule 2, paragraph 19B, to the Children Act 1989), a “relevant child” (see section 23A of the Act) or a “former relevant child” (see section 23C), having previously been (see section 23A(2)) an “eligible child”. There is some room for debate as to when precisely G became, or but for alleged breaches of duty by the local authority would have become, an “eligible child”, but it is accepted by the local authority that G had become an eligible child at the latest by 2 August 2006, at which time she was a little over 17 years old (see Schedule 2, paragraph 19B(2)(b), and regulation 3(1)). I will proceed therefore on the basis that G became an eligible child on that date. It is likewise accepted by the local authority that G, having now attained the age of 18, is a “former relevant child”.

Given that G was an “eligible child” it was accordingly the duty of the local authority:

Given that G became an eligible child after she had reached the age of 16, the assessment should have been completed not more than three months after G became an eligible child (see regulation 7(2)(a)) – in other words no later than 2 November 2006 – and the pathway plan should have been completed “as soon as possible” thereafter (see regulation 8(1)).

The statutory scheme does not specify a precise date by when the personal adviser is to be appointed. Paragraph 19C of Schedule 2 to the Act provides merely that:

“A local authority shall arrange for each child whom they are looking after who is an eligible child for the purposes of paragraph 19B to have a personal adviser.”

Given that the duty is mandatory, and tied to the fact that the child in question “is” an eligible child, it follows, in my judgment, that the duty to arrange for the appointment of a personal adviser arises the moment the child becomes an eligible child. No doubt the process of arranging the appointment of a personal adviser will take at least a few days, perhaps weeks. So the duty is, in my judgment, a duty to secure the appointment of the personal adviser forthwith – in the sense of as soon as reasonably practicable – once the child has become an eligible child. G became an eligible child on 2 August 2006, so her personal adviser should have been appointed as soon as practicable thereafter.

According to the local authority a personal adviser was appointed for G on 4 August 2006, being replaced by another personal adviser in December 2007. Her leaving care worker, who had the responsibility for carrying out G’s assessment and preparing her pathway plan, was not appointed until 19 February 2007. The local authority has, even now, supplied only the most exiguous information about the assessment and about the process by which the first pathway plan was produced, but since that document (albeit undated) refers to certain actions to be taken “before the end of February 2007” it would seem that the pathway plan was prepared, within a matter of days at most, before the end of February 2007.

Following receipt of a letter before action from G’s solicitors dated 4 January 2008 the local authority provided what was called an updated pathway plan dated 14 January 2008. (At the hearing on 18 February 2008 I was told that this was in fact only a draft.) It was that document which was at the centre of G’s challenge when the judicial review proceedings were issued on 18 January 2008. By the date of the hearing before me on 30 January 2008 the local authority had proved yet another draft pathway plan dated 21 January 2008. Having acknowledged the continuing deficiencies even in that document the local authority submitted to an order on 30 January 2008 requiring it to produce a revised pathway plan by 8 February 2008. The pathway plan on which the local authority has eventually chosen to rely was in fact produced on 6 February 2008, and even then in what the local authority itself described as being only in “final draft” form.

The process of assessment is prescribed by regulations 5-7. Regulation 5 provides so far as material as follows:

“(1)

The responsible authority must prepare a written statement describing the manner in which the needs of each eligible and relevant child will be assessed.

(2)

The written statement must include, in relation to each child whose needs are to be assessed, information about, in particular –

(a)

the person responsible for the conduct and co-ordination of the assessment;

(b)

the timetable for the assessment;

(c)

who is to be consulted for the purposes of the assessment;

(d)

the arrangements for recording the outcome of the assessment;

(e)

the procedure for making representations in the event of a disagreement.

(3)

The responsible authority must make a copy of the statement available to the child and the persons specified in regulation 7(5).”

Regulation 6 provides so far as material that:

“(1)

The responsible authority in carrying out an assessment … shall, unless it is not reasonably practicable –

(a)

seek and have regard to the views of the child or young person to whom it relates; and

(b)

take all reasonable steps to enable him to attend and participate in any meetings at which his case is to be considered.

(2)

The responsible authority shall without delay provide the child or young person with copies of –

(a)

the results of his assessment …

and shall ensure that the contents of each document are explained to him in accordance with his level of understanding unless it is not reasonably practicable to do so.”

Regulation 7 provides so far as material that:

“(1)

The responsible authority shall assess the needs of each eligible child … in accordance with these Regulations.

(2)

The assessment is to be completed –

(a)

in the case of an eligible child, not more than three months after the date on which he reaches the age of 16 or becomes an eligible child after that age; …

(3)

Each responsible authority shall ensure that a written record is kept of –

(a)

the information obtained in the course of an assessment;

(b)

the deliberations at any meeting held in connection with any aspect of an assessment; and

(c)

the results of the assessment.

(4)

In carrying out an assessment the responsible authority shall take account of the following considerations –

(a)

the child’s health and development;

(b)

the child’s need for education, training or employment;

(c)

the support available to the child from members of his family and other persons;

(d)

the child’s financial needs;

(e)

the extent to which the child possesses the practical and other skills necessary for independent living; and

(f)

the child’s needs for care, support and accommodation.

(5)

The responsible authority shall, unless it is not reasonably practicable to do so, seek and take into account the views of –

(a)

the child’s parents;

(b)

any person who is not a parent but has parental responsibility for the child;

(c)

any person who on a day to day basis cares for, or provides accommodation for the child;

(d)

any school or college attended by the child, or the local education authority for the area in which he lives;

(e)

any independent visitor appointed for the child;

(f)

any person providing health care or treatment to the child;

(g)

the personal adviser appointed for the child; and

(h)

any other person whose views the responsible authority, or the child consider may be relevant.”

The process of producing the pathway plan is prescribed by regulations 6 and 8. Regulation 8 provides so far as material that:

“(1)

A pathway plan prepared under paragraph 19B of Schedule 2 to … the Act, must be prepared as soon as possible after the assessment and must include, in particular, the matters referred to in the Schedule.

(2)

The pathway plan must, in relation to each of the matters referred to in the Schedule, set out –

(a)

the manner in which the responsible authority proposes to meet the needs of the child; and

(b)

the date by which, and by whom, any action required to implement any aspect of the plan will be carried out.

(3)

The pathway plan must be recorded in writing.”

The Schedule is in the following terms:

“Matters to be Dealt with in the Pathway Plan …

1

The nature and level of contact and personal support to be provided, and by whom, to the child or young person.

2

Details of the accommodation the child or young person is to occupy.

3

A detailed plan for the education or training of the child or young person.

4

How the responsible authority will assist the child or young person in relation to employment or other purposeful activity or occupation.

5

The support to be provided to enable the child or young person to develop and sustain appropriate family and social relationships.

6

A programme to develop the practical and other skills necessary for the child or young person to live independently.

7

The financial support to be provided to the child or young person, in particular where it is to be provided to meet his accommodation and maintenance needs.

8

The health needs, including any mental health needs, of the child or young person, and how they are to be met.

9

Contingency plans for action to be taken by the responsible authority should the pathway plan for any reason cease to be effective.”

Regulation 6 provides so far as material that:

“(1)

The responsible authority in … preparing … a pathway plan shall, unless it is not reasonably practicable –

(a)

seek and have regard to the views of the child or young person to whom it relates; and

(b)

take all reasonable steps to enable him to attend and participate in any meetings at which his case is to be considered.

(2)

The responsible authority shall without delay provide the child or young person with copies of –

…

(b)

his pathway plan …

and shall ensure that the contents of each document are explained to him in accordance with his level of understanding unless it is not reasonably practicable to do so.”

I had occasion to consider the statutory scheme in some detail in R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, a case in which I handed down judgment on 2 April 2005. (Nothing turns on the fact that that was a case under the corresponding Welsh regulations – the Children (Leaving Care) (Wales) Regulations 2001, SI 2001/2189) – for although they differ in detail their effect is the same.) There is no need for me to repeat the exercise. I take the law as being as laid down in that case.

I should, however, draw attention to what I said (see para [30]) about the functions of the personal adviser:

“It is not part of the personal adviser’s functions to undertake the statutory assessment or the preparation of the pathway plan, nor should he do so. The Regulations, in my judgment, show that it is not permissible for him to do so. It is, in any event, undesirable that he should do so. Part of the personal adviser’s role is, in a sense, to be the advocate or representative of the child in the course of the child’s dealings with the local authority. As the Children Leaving Care Act Guidance puts it, the personal adviser plays a ‘negotiating role on behalf of the child’. He is, in a sense, a ‘go-between’ between the child and the local authority. His vital role and function are apt to be compromised if he is, at one and the same time, both the author of the local authority’s pathway plan and the person charged with important duties owed to the child in respect of its preparation and implementation.”

In that case the pathway plan had been prepared by the personal adviser, Mr S. Counsel complained (see para [31]) that in these circumstances the local authority had not in truth provided J with a personal adviser, for Mr S was in a position where his dual roles put him in a position of conflict, or at least ambiguity, and prevented him single-mindedly acting in his role as personal adviser. That function, said counsel, had been obscured and compromised. J was entitled to a personal adviser and sought a mandatory order to compel the local authority to provide one.

I found there to be (see para [32]) compelling force in counsel’s complaints. I continued:

“J is entitled to a personal adviser whose function is just that, and whose function is not obscured and compromised by the conflicts and ambiguities which, unfortunately, cloud Mr S’s position. The present situation cannot continue and must be remedied.”

In that case I was not required to analyse the assessment part of the process in any detail; my focus was upon the inadequacies in the pathway plan itself. In that context I should draw attention to what I said in paras [45]-[46]:

“To repeat, because the point is so important, and a clear statement of what is required may assist not merely this but other local authorities: A pathway plan must clearly identify the child’s needs, and what is to be done about them, by whom and by when. Or, if another aphorism would help, A pathway plan must spell out who does what, where and when …

… A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the ‘how, who, what and when’ – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met. Nothing less is called for in a pathway plan. Indeed, the Regulations, as we have seen, mandate a high level of detail.”

It will be appreciated that the statutory process envisages two quite separate stages: first, the assessment, culminating (see regulation 7(3)(c)) in the preparation of a written record of the results of the assessment; and, secondly, the preparation of a pathway plan. These are, not merely chronologically but also as a matter of substance, two entirely different exercises. The purpose of the assessment (see regulation 7(1)) is to “assess the needs” of the child. The purpose of the pathway plan (see regulation 8(2)(a)) is to set out “the manner in which” the local authority proposes “to meet the needs of the child”, that is, in my judgment, the needs of the child as assessed during the course of the assessment.

It will be noted that the local authority’s duty during the assessment is not merely to identify the child’s needs – though that is presumably part of the process of assessing them – it is to “assess” the child’s needs. “Assessment” goes beyond mere identification of needs; it involves analysis and evaluation of the nature, extent and severity of the child’s needs, a process which must go far enough to enable a pathway plan to be prepared setting out in sufficiently precise detail the “manner in which” those needs are to be met.

The local authority’s position at the commencement of the hearing on 18 February 2008, as set out in its acknowledgement of service and grounds of defence dated 14 February 2008, was that its latest pathway plan dated 6 February 2008 was not deficient and that the claim for judicial review should therefore be dismissed. That stance, in my judgment, was quite untenable and was soon abandoned. In the event the local authority was compelled to submit to a declaration that it:

“has to date acted in breach of its duties to [G] … in failing to conduct a lawful Pathway Assessment and in failing to produce a lawful Pathway Plan for [G].”

In the circumstances there was no need for me to hear full argument on all the points that might otherwise have been in issue, but the materials filed with the court, read in conjunction with the very detailed skeleton arguments that I also had the benefit of reading, enable me to summarise what, in my judgment, are the main heads of concern – major concern:

It is depressing to have to note this catalogue of failings. It is now almost three years since my judgment in R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, yet the present case exhibits serious failure by a major local authority to comply with its statutory duties and to heed relevant judicial authority. Matters are all the worse because, as the local authority also had to concede, its failures in this case are far from unique. The local authority has accepted that “it would have been usual for the personal adviser to have played a part on both sides of the fence” (emphasis added). Thus in addition to undertaking that it would provide G within 7 days with a personal adviser who has not been involved with the preparation of her pathway plan, the local authority also undertook to conduct an urgent review of its arrangements for personal advisers. I am told – the importance of the issue having, as it was put, now been brought home to it – that the local authority is taking urgent steps to resolve the situation in both the children’s teams and the leaving care team so as to ensure that personal advisers do not have a foot in both camps.

As I observed during the hearing, any judge must have sympathy with a local authority struggling to cope, no doubt with insufficient human and other resources, with social problems on the scale with which, as is notorious, this particular local authority is faced. And I do not criticise the social workers ‘on the ground’ who are struggling to cope with no doubt excessive case-loads. The problem is one of management and training.

That said, I am quite satisfied that G is entitled to the relief under this head of her claim to which the local authority has felt compelled to submit.

In my earlier judgment (see R (G) v Nottingham City Council [2008] EWHC 152 (Admin) at paras [10]-[13]) I referred to the material I was shown during the hearing on 30 January 2008 bearing on events at the hospital following K’s birth.

I have now seen the hospital’s notes. They show that K was born at 2.11am on 30 January 2008 and that at 3.45am:

“Bed booked on [X ward] for [G] and [Y ward] for baby as per plan.”

The notes further record a telephone call from a social worker after K was born and before he was removed from his mother:

“social worker returned call … – To adhere to plan of mum/baby to separate wards”.

K was removed “separately” to [Y ward] at 5.10am. Finally, so far as is material for present purposes, the notes contain this record timed at 10.20am:

“[social worker] rang from social services to confirm whether [G] and her baby were being cared for on separate wards. I confirmed that this was the case.”

At 12.20pm the hospital was notified of my order. G and K were reunited at 12.30pm.

It is therefore quite plain as a matter of fact that the separation of G and K was effected by staff of the NHS Trust acting not merely in accordance with the ‘birth plan’ but at the express direction of a local authority social worker.

As I recorded in my previous judgment (see R (G) v Nottingham City Council [2008] EWHC 152 (Admin) at para [14]) the local authority had accepted before me at the hearing on 30 January 2008 that it could not, as a matter of law, justify what had happened. But at the hearing on 18 February 2008 the local authority seemed to be trying to resile from that concession.

As I mentioned in my previous judgment (see R (G) v Nottingham City Council [2008] EWHC 152 (Admin) at para [12]), the ‘birth plan’ drafted by the local authority on 18 December 2007 was for the separation of mother and baby at birth. In a document lodged on behalf of the local authority for the purpose of the hearing on 18 February 2008 it was asserted that:

“The terms of this written birth plan were subsequently shared with the mother by the social worker. The local authority says that the mother did not raise objection to this birth plan.

… the birth plan was orally amended to provide that the maternal grandparents of the baby would be able to supervise contact between mother and baby following birth. The plan remained that the baby would be placed on a separate ward from the mother pending discharge from hospital and placement with foster carers.

The local authority verily believes that the mother understood and agreed to this amendment to the birth plan, albeit orally. No objection was raised to it.”

No further particulars of any alleged oral agreement are given and it is not asserted in terms (as I would have expected had this in fact happened) that G ever uttered words expressly stating her agreement to the plan.

The document continued, dealing with events following K’s birth:

“the midwife is understood to have explained to the mother that she now needed to take the baby onto a separate ward, in accordance with the terms of the written birth plan … The mother is not understood to have raised objection at this point and the baby was accordingly removed from her care.”

Against this asserted factual background it was submitted on behalf of the local authority that the birth plan was a plan to accommodate K within the meaning of section 20 of the Children Act 1989, that it was “not opposed by the mother”, that in these circumstances K was being accommodated by the local authority within the meaning of section 20, and that accordingly the period of accommodation was not unlawful as a matter of domestic law.

Nonetheless the local authority indicated in the same document that it would not seek to oppose a declaration that the separation was wrongful, seemingly on the basis that its decisions, albeit taken and implemented in good faith, may not have been necessary and proportionate as required by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Now none of his was supported by any evidence, notwithstanding that the order I had made on 30 January 2008 made it clear that, if permission to apply for judicial review was granted, I would at the hearing on 18 February 2008 be dealing also with the substantive claim. It was merely set out, albeit clearly and in some detail, in a document summarising the local authority’s position.

But quite apart from that there seemed to me to be a much more fundamental objection to the case which the local authority was seeking to advance. The argument that K had been lawfully accommodated by the local authority with the consent of the mother was in reality founded on nothing more than the assertion that the mother knew and understood the details of the birth plan (in both its original and its amended form) and that she did not “raise objection” to it, just as it was likewise asserted that, following the birth, she had not “raised objection” to the removal of her new-born baby.

No authority of any kind was produced in support of these surprising propositions, that a mother could be said to have given her consent to the removal of her baby merely because, knowing of the local authority’s plan, she did not object to it and because, when the moment of separation arrived, she did not actively resist. I am not surprised. They are, with respect to those propounding them, as divorced from legal substance as they are remote from the emotional – and dare a man be permitted to say it – the hormonal realities of the human condition. Our law has long recognised that women in the aftermath of birth may not be as able to act wisely as at other times. It is, after all, compassionate regard for those realities which underlies statutory provisions as disparate as section 1 of the Infanticide Act 1938 and section 52(3) of the Adoption and Children Act 2002.

I do not wish to be misunderstood. I am not suggesting that consent to the accommodation of a child in accordance with section 20 is required by law to be in writing – though, that said, a prudent local authority would surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature. Nor am I disputing that there may be cases where a child has in fact, and without parental objection, been accommodated by a local authority for such a period as might entitle a court to infer that the parent had in fact consented.

But the local authority here seemed to be going far beyond this. It seemed to be conflating absence of objection with actual consent – a doctrine which at least in this context is, in my judgment, entirely contrary to principle and which, moreover, contains within it the potential for the most pernicious consequences, not least because there are probably many mothers who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did in this case.

To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger.

What the local authority and the NHS Trust did to G and K was unlawful absent consent by G. Let it be assumed that G did not object (though her account of these events would, I was told, be very different). As I observed during the hearing, the fact that she did not object does not mean that she consented. Even on the local authority’s own case the fact is that G did not consent.

Least of all could it sensibly be said that G was consenting because she did not, as the local authority puts it, “raise objection” at the point when her baby was actually removed. This happened at 5.10am, following his birth less than three hours before, at 2.11am. The hospital notes record that at 1.10am during labour G had been “getting distressed” and that at 1.30am she was “very distressed.” The notes record her later that morning at 11.30am as being “very tearful and upset at situation with baby.” The idea that this mother in this situation – physically and emotionally weakened and distressed by events – can sensibly be said to have given consent to the removal of her baby verges, in my judgment, on the unreal: consider, for example, the discussion in In re T (Adult: Refusal of Treatment) [1993] Fam 95.

I accept that there can of course be cases where a woman is able to give a valid consent to the accommodation of her newly-born baby by the local authority immediately after birth. Re L, X County Council v C [2007] EWHC 1771 (Fam) is a recent example, where a woman who had entered a labour ward with a settled intention to hand over her baby for adoption immediately after birth left the hospital within two hours of her daughter’s birth without seeing her and requesting that she be adopted. But the present case is far removed indeed from the rather unusual circumstances in Re L.

The contention that G consented to the removal of her baby in the circumstances in which she found herself at 5.10am on 30 January 2008 is, if I may borrow a phrase of Frankfurter J (see US v Dege (1960) 364 US 51 at page 53, adopted by Oliver J, as he then was, in Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496 at page 526), “unnourished by sense”.

I referred during the course of the hearing on 18 February 2008 to the principle, frequently reiterated by the European Court of Human Rights at Strasbourg (see for example HL v United Kingdom (2004) 40 EHRR 761 at para [90] and Storck v Germany (2005) 43 EHRR 96 at para [75]), that although consent may render lawful what would otherwise be an unlawful deprivation of liberty:

“the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention”.

Now that, of course, was said with reference to Article 5 of the Convention, which protects the right to liberty, whereas I am here concerned with Article 8, which protects and enjoins respect for family life, in particular a mother’s right not to be separated from her baby without her consent (and her baby’s corresponding right not to be separated from his mother without her consent) except in circumstances, permitted by law, where the interests of the child necessitate the intervention of State authorities. But it might be thought that the underlying point is the same, whether what is in issue is the removal of one’s liberty or the removal of one’s child. Submission in the face of asserted State authority is not the same as consent. In this context, as in that, nothing short of consent will suffice.

Upon reflection, the local authority decided not to pursue the assertion that G had consented. It agreed to the inclusion in the order I eventually made (see paragraph [77] below) of a recital confirming that G “did not at any stage consent to the proposed separation of her baby from her” and that G’s “failure … to raise objections did not amount to consent.”

I have no doubt that the local authority was right to make these concessions. On its own case the separation of G and K was, in my judgment, unlawful as a matter of domestic law, quite apart from the fact that it also involved an actionable breach of Article 8. When they separated G and K the local authority and its agents, the staff of the NHS Trust, were acting without any lawful justification or authority.

It was in these circumstances that I made a declaration that:

“the separation of [G]’s new born baby from his mother on 30th January 2008 at the [NHS Trust] was a breach of [G]’s rights under Article 8 ECHR in that the [local authority] had neither lawful authority nor any consent from [G] for the said action.”

It is convenient to turn at this point to consider the position of the NHS Trust.

As I have already said, the separation of G and K was effected by staff of the NHS Trust acting in accordance with the ‘birth plan’ and at the express direction of a local authority social worker.

The material part of the NHS Trust’s acknowledgement of service read as follows:

“In relation to the alleged unlawful removal of [K], [the local authority] provided [the NHS Trust] with the authority to remove [K] from [G]. It is not for [the NHS Trust] to question the legality of this authority.

Accordingly, [the NHS Trust] would wish to be removed as an interested party”.

I appreciate that the NHS Trust had been joined as a party only on 14 February 2008 and that its acknowledgement of service was drafted in haste so that it could be filed on 15 February 2008 (a Friday) in time for the hearing on 18 February 2008 (a Monday). (As against this, the order for the joinder of the NHS Trust had been made on 30 January 2008 and the NHS Trust was aware of the court’s involvement, as its own records show, by 12.20pm that day.) Nonetheless, and making every allowance, I have to say that I found what was being said surprising.

The NHS Trust’s staff did something – they removed G’s baby – which absent any lawful authority was unlawful and a breach of Article 8. The NHS Trust cannot immunise itself from liability by pleading the bare fact of “authority” allegedly “provided” by another public body. And to assert that it was not for the NHS Trust to question the legality of the “authority” supposedly provided by the local authority is simply not acceptable.

It was the duty of the NHS Trust, if it was proposing to act as it did, to ensure that it was acting with lawful authority. If it chose not to, if it chose simply to assume, on the mere say-so of a social worker, that what it was being asked to do was lawful, then it must take the consequences of its imprudence. And the consequence, in the circumstances of this case, is that the NHS Trust is a joint wrongdoer with the local authority, jointly and severally liable for the breach of Article 8 to which, jointly with the local authority, it was a party.

The fact that in the event G has chosen not to pursue her remedy against the NHS Trust, preferring instead to concentrate her fire on the local authority, is neither here nor there, though it no doubt reflects, at least in part, her perception of where the real responsibility for what happened lies.

Counsel for the NHS Trust showed little enthusiasm for what had been said in the acknowledgement of service and rightly did not seek to develop the point. Indeed, she sought permission to amend it so as to read:

“In relation to the alleged unlawful removal of K, employees of [the NHS Trust] acted on the instructions of [the local authority] social work team, unaware of the absence of legal authority for this action.

[G] does not seek relief against [the NHS Trust].

Accordingly, [the NHS Trust] would wish to be removed as an interested party.”

I gave the NHS Trust permission to amend in these terms and, in the light of G’s decision not to pursue any claim against it, ordered the NHS Trust to be discharged from the proceedings with (as agreed) no order as to costs.

I made clear in my previous judgment (see R (G) v Nottingham City Council [2008] EWHC 152 (Admin) at para [19) that I did not criticise the medical staff on the ground. As I said:

“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.”

The fault, the responsibility, lies with management.

A commentator, referring to my previous judgment (see Legislation Update by Stephen Cragg in the Times on 19 February 2008), observed that “The case seems to underline a need for basic training on the law for social workers and medical staff.” The melancholy facts disclosed here certainly suggest that there are training issues which need to be considered by both the local authority and the NHS Trust (and, for all I know, by other local authorities and NHS Trusts).

But I venture to suggest that there are also management issues which require at least as urgent consideration, not least, it might be thought, by the NHS Trust. It is reasonable to expect, and for local authority management to assume, that appropriately trained child-care social workers, who after all spend their professional lives operating within the framework of the Children Act 1989, will know that they cannot remove a child from an unwilling parent without a court order. The same expectations and assumptions cannot fairly be made about medical staff on the front line. They need to be given appropriate guidance by management; indeed, it might be thought that they are entitled to look to management for appropriate guidance as to what to do if presented with the problem the medical staff in this hospital was faced with in the small hours of 30 January 2008.

So far as concerns the local authority, it was agreed that I should adjourn for a further hearing, if the parties were unable to agree, the question of whether G was entitled in accordance with section 8 of the Human Rights Act 1998 to any, and if so what, financial compensation for her unlawful separation from K or whether, as the local authority submitted, the granting of the declaration suffices to provide her with “just satisfaction” within the meaning of Article 41 of the Convention. These are questions of some difficulty and complexity which, if they cannot be resolved by agreement, are best dealt with on another day.

It was in these circumstances that I accordingly made an order in the following terms as agreed by the parties:

“AND UPON the [local authority] confirming that it accepts that:

(a)

[G] did not at any stage consent to the proposed separation of her baby from her after birth;

(b)

there was no consent notwithstanding that (so the [local authority] asserts) [G] had been informed by the [local authority]’s professional staff of the birth plan on 8th January 2008 and had not raised any objections to the proposed plan, which included the said separation;

(c)

the failure of [G] to raise objections did not amount to consent (the [local authority] asserts that on various occasions [G] raised differing comments about the birth plan but accepts that on no occasion raised objections to the plan).

AND UPON [G] confirming that (so she asserts) she frequently raised objections to the proposals to remove the baby from her and reiterating that (so she asserts) at no time has she consented to the said separation.

AND UPON the [local authority] by its counsel undertaking:

(a)

to provide, within 7 days, a personal advisor for [G] who has not been concerned in the preparation of the Pathway Plan; and

(b)

to conduct an urgent review of the arrangements for personal advisors for “eligible children “relevant children” and “former relevant children” within the meaning of the Children Act 1989 and the Children (Leaving Care) (England) Regulations 2001

AND UPON the [local authority] by its counsel further undertaking that, having appointed a personal advisor for [G], the [local authority] will consult with [G] and her Personal Advisor, and will file and serve a Pathway Plan within 28 days, namely by 4pm on Monday 17th March 2008

AND IT BEING RECORDED that declaration (2) below is without prejudice to [G]’s claim that the [local authority] breached her Article 8 Rights by failing to assess the psychological impact of the separation of the mother and child and explore the alternatives to separation

IT IS DECLARED that:

(1)

the [local authority] has to date acted in breach of its duties to [G] under the Children Act 1989 and the Children (Leaving Care) (England) Regulations 2001 in failing to conduct a lawful Pathway Assessment and in failing to produce a lawful Pathway Plan for [G]; and

(2)

the separation of [G]’s new born baby from his mother on 30th January 2008 at the [NHS Trust] was a breach of [G]’s rights under Article 8 ECHR in that the [local authority] had neither lawful authority nor any consent from [G] for the said action.

AND IT IS ORDERED that:

1

Permission is granted to [G] to apply for judicial review.

2

The application for judicial review is allowed.

3

(1) The issue as to whether any breach of [G]’s Article 8 rights should lead to a formal remedy for [G] shall be determined as between [G] and the [local authority] alone, such matter to be listed with a time estimate of one day before Mr Justice Munby on a date to be fixed (in consultation with the Clerk to Mr Justice Munby) not earlier than 28 days from today.

(2)

The [local authority] will make its position on any remedy clear to [G] within 14 days.

(3)

The parties shall be at liberty to call oral evidence.

(4)

Liberty to the parties to apply to Mr Justice Munby for further directions.

(5)

Liberty to the parties to apply to restore on 48 hours notice.

(6)

Liberty to [G] to apply to extend the claim to include common law damages, such application to be listed at the same hearing referred to at sub-paragraph (1) above.

4

The [local authority] shall pay [G]’s costs of this action to be taxed if not agreed.

5

There shall be a detailed assessment of [G]’s publicly funded costs.

6

The [NHS Trust]:

(a)

is given permission to amend its Acknowledgment of Service by deleting the words from “Baby [G]” to “legality of this authority” and substituting therefor:

“K, employees of [the NHS Trust] acted on the instructions of [the local authority] social work team, unaware of the absence of legal authority for this action.

[G] does not seek relief against [the NHS Trust].”; and

(b)

shall be discharged from the proceedings with no order as to costs.

7

Save as aforesaid there shall be no order for costs.

8

This matter and all applications are reserved to Mr Justice Munby unless released by him to another judge.”

It will be seen that the local authority has agreed to pay G’s costs.

I should explain the reference in paragraph 3(6) of the order to common law damages. As presently framed, G’s claim for compensation is confined to damages under Section 8 of the Human Rights Act 1998. There is no claim for common law damages. Paragraph 3(6) is designed to enable G to apply, if so advised, to extend her claim to include common law damages. No doubt, before embarking upon that course, her advisers will wish to consider the important decision of the Court of Appeal in F v Wirral Metropolitan Borough Council [1991] Fam 69.

At this point I adjourned into chambers to deal with the care proceedings. There was no application that I sit in public, nor any application that I permit the media access to the hearing.

I do not propose to describe the hearing in any detail.

There was no application to discharge the interim care order. The only matter debated before me was the question identified by the Court of Appeal, namely whether there should be a further assessment pursuant to section 38(6). This was not in fact opposed by the local authority and I agreed that, in all the circumstances, it was an appropriate case in which to direct, in accordance with the recommendation in the viability assessment, a residential assessment of G and K (possibly to be joined later by K’s father) at a specialist mother and baby unit. That assessment will be paid for by the local authority.

I also gave certain further directions which there is no need to discuss further. It suffices to say that, at least for the time being, the care proceedings will remain in the High Court, reserved to me. But there may come a time when it will be appropriate to transfer them back to the Nottingham County Court.

At the end of the hearing I authorised the following press release:

“The care proceedings have been further considered by Mr Justice Munby today, 18^th February 2008, and it was agreed between the parties that there should be an assessment pursuant to section 38(6) of the Children Act 1989 to which agreement the judge gave his approval.”

I propose to add only this. G’s problems are deep-seated and long-standing and she is likely to require appropriate support and assistance for some time into the future. She is possibly at a turning point in her life. I very much hope – everyone would very much hope – that, with appropriate assistance, G can now put her past behind her and turn her life around. But much depends upon G herself. As will be apparent from this judgment the local authority is preparing to devote considerable resources to assisting G and her baby, but no amount of resources will bear fruit unless G is willing and able to play her part. She has a chance to prove herself: to prove that she can be an adequate mother for her child. The assessment on which she is now embarking will not be easy for G. She may find the regime at the mother and baby unit more challenging and demanding than she expects. I know it will be difficult for her, but I hope that she is able to rise to the challenge. Unless she can the prospects must be bleak.

As I announced at the outset of the hearing in open court of the judicial review proceedings, I have imposed injunctions restraining the publication of any photograph or sketch of either G or K or any other matter which might lead to the identification of either of them. Later, during the hearing of the care proceedings, I extended these injunctions to include K’s father as well as G and K.

Subject only to those injunctions there are no restrictions on the reporting of the judicial review proceedings.

Although the hearing of the judicial review proceedings took place in public, the hearing of the care proceedings, as I have said, took place in chambers – in private. Reporting of the care proceedings is accordingly subject to the restrictions imposed by section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989.