This article first appeared on Family Law Week

There has been a steady stream of cases in which the courts have considered the rights and wrongs of removing children from their parents on an interim basis.  The age of the child(ren) concerned has not been a particular focus although quite often the child is a new-born and it is the birth of the child which brings about the urgent application to the court.  There is growing concern in the media about the removal of young babies from their parents with figures showing that the number of children taken from their families on the grounds of alleged abuse or neglect has more than doubled in the last 10 years, from 1,300 10 years ago to 2,800 last year.  The author has also observed, anecdotally, that there seems to be a confusion in the advice given to social services because of an insufficient distinction between grounds for care proceedings being brought and grounds for interim removal.  An examination of the case law demonstrates that interim removal should very rarely be ordered and that very great care indeed should be taken to ensure that there is proper pre-proceedings disclosure and that scrupulously fair procedures are adopted at hearings.

1. In Re O (Supervision Order) [2001] 1 FLR 923 (http://www.bailii.org/ew/cases/EWCA/Civ/2001/16.html), Hale LJ (as she then was) emphasises that ‘the court should begin with a preference for the less interventionist rather than the more interventionist approach.  This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary …’
   
   
2. In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, (in which the author had the privilege and good fortune to be led by the late and sorely missed Allan Levy QC), the feared harm to the subject child derived from the mother’s personality traits which in stressful situations, including conflict with the father, led to her becoming irrational, aggressive, emotionally demanding and incapable of putting the children’s needs before her own .. (para 15)).  At the time of the interim hearing resulting in the child’s removal there was no evidence of physical harm; on the contrary, the evidence was that he was thriving.  Hale LJ (as she then was) said (para 17): ‘I am bound to comment about that.  On what basis could it possibly be appropriate to remove a 10 month-old baby from the only parents and home he had ever known, at a crucial stage in the development of his attachments, when there was no evidence that he was at immediate physical risk and, indeed, no evidence that he was at immediate emotional risk?  All the evidence was that he was doing well.  All the evidence was that there was no existing pointer to anything that might have been thought to indicate that he was not doing well at that time.  Any evidence of a risk of harm was to his intellectual and emotional development at a considerably later stage…. I do not, of course, wish to suggest that there are no cases in which one should intervene now to prevent future harm, or that none of those may warrant immediate pre-emptive action before the case comes on for full hearing.  But this was nowhere near a clear enough case of the former to warrant the latter.  It was a classic example of a situation where the case for intervention should have been proved by a full hearing in court before the intervention took place, and not after.’
   
   
3. Hale LJ went on to say (para 28) that the court had to look at the nature of the feared harm – clearly removal might be justified where there was a comparatively small risk but of really serious harm.  However, it was not so justified where the harm was not immediate and not of the gravest sort.  The nature and gravity of the feared harm must be highly relevant to the action taken in response to it.  ‘I also accept that there are cases in which the local authority is not bound to wait until the inevitable happens: it can intervene to protect long before that.  But there has to be a balance.  The cases where it is appropriate to do that are likely to involve long-standing problems which interfere with the capacity to provide even ‘good enough’ parenting in a serious way, such as serious mental illness, or a serious personality disorder, or intractable substance abuse or evidence of past chronic neglect or abuse, or evidence of serious ill-treatment and physical harm’ (para 30).  The response or intervention must be proportionate to the feared harm.
   
   
4. In Re G (Care: Challenge to Local Authority’s Decision) [2003] 2 FLR 42 ((http://www.bailii.org/ew/cases/EWHC/Fam/2003/551.html), Munby J held: ‘The fact that a local authority has parental responsibility for children pursuant to s 33(3)(a) of the Children Act 1989 does not entitle it to take decisions about children without reference to, or over the heads of the children’s parents.  A local authority, even if clothed with the authority of a care order, is not entitled to make significant changes in the care plan, or to change the arrangements under which the children are living, let alone to remove the children from home if they are living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision is made.  After all, the fact that the local authority also has parental responsibility does not deprive the parents of their parental responsibility.’
   
   
5. In Re B (Care: Interference with Family Life) [2003] 2 FLR 813 (http://www.bailii.org/ew/cases/EWCA/Civ/2003/786.html), Thorpe LJ held: ‘the judge may not make such an order without considering the European Convention for the Protection of Human Rights and must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.’
   
   
6. In Haase v Germany [2004] 2 FLR 39 (http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&
   action=html&highlight=haase%20%7C%20germany
   &sessionid=2015420&skin=hudoc-en), the European court held (para 95 ff): ‘ The fact that  a child could be placed in a more beneficial environment  for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the ‘necessity’ for such an interference with the parents’ right under Art 8 to enjoy a family life with their child…before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established.  It is true that in obvious cases of danger no involvement of the parents is called for.  However if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action, in particular when, like in the present case, the danger had already existed for a long period.’
   
   
7. In X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 ((http://www.bailii.org/ew/cases/EWHC/Fam/2004/2015.html), in the course of setting out a number of guiding principles in relation to emergency protection orders, Munby J held that ‘separation is only to be contemplated if immediate separation is essential to secure the child’s safety: ‘imminent danger’ must be ‘actually established’.  Other principles that can be distilled from the case include:-
   
   a) A number of gaps in the statutory scheme made it especially important that both the local authority and the justices in the family proceedings court approached every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and scrupulous regard for the human rights of both the child and the parents.
   
   b) A delay in the appointment of a Guardian even of ‘only’ 10 days was wholly unacceptable in the context of an EPO case where removal was contemplated. In such cases a guardian must be appointed immediately upon issue of the proceedings (in theory this should be assisted by the new Public Law Outline (PLO) (see below) which aims to ensure the appointment of  a Children’s Guardian within two days of a case being set down for directions);
   
   c) An EPO was a ‘draconian’ and ‘extremely harsh’ measure, requiring exceptional justification’ and ‘extraordinarily compelling reasons’. It should not be made unless the Family Proceedings Court are satisfied that it is both necessary and proportionate and that no other less radical form of order would promote the welfare of the child.
   
   d) If the real purpose of the local authority’s application was to facilitate assessment of the child then consideration should be given to whether that objective could not equally effectively , and more proportionately, be achieved by a child assessment order under s43;
   
   e) No EPO should be made for any longer then absolutely necessary to protect the child;
   
   f) The evidence to support that EPO had to be full, detailed, precise and compelling;
   
   g) Save in wholly exceptional circumstances, parents must be given adequate prior notice of the date, time and place of any application for an EPO, and of the evidence being relied upon;
   
   h) An ex parte application was normally appropriate only if a case was genuinely one of emergency or other great urgency (and even then it should normally be possible to give some kind of notice to the parents or if there were compelling reasons to believe that the child’s welfare would be compromised if the parents were alerted in advance;
   
   i) The FPC had to comply meticulously with the mandatory requirements of rr20 and 21 (5) (6) of the Family Proceedings Courts (CA 89) Rules 1991, keeping a note of the substance of the oral evidence and recording in writing not only its reasons but also its findings of fact;
   
   j) The local authority, even after it has obtained an EPO, was under an obligation to consider less drastic alternatives to emergency removal. It would be prudent for the local authority to have procedures to ensure that both the required decision-making actually took place and that it was appropriately documented - s44 imposes on the local authority a continuing duty to keep the case under review day by day to ensure the parent and child were separated for no longer than was necessary to secure the child’s safety;
   
   k) Arrangements for ‘reasonable contact’, required under s44 (13), subject only to any direction given by the FPC under s44(6), had to be driven by the needs of the family, not stunted by lack of resources.
   
8. In Re X: Emergency Protection Orders [2006] 2 FLR 701), (http://www.bailii.org/ew/cases/EWHC/Fam/2006/510.html),  McFarlane J in reviewing  a case where EPOs had been granted on the basis of a misleading picture of the factual background, repeated and endorsed the summary of Munby J and added his own views as follows:
   
   a) EPO hearings should be tape recorded or at least attended by a dedicated note taker, in addition to the clerk;
   
   b) All magistrates should have available at any EPO hearing the judgment of Munby J;
   
   c) The applicant should draw the court’s attention to that judgment;
   
   d) Case conference minutes should be produced to the court (and the author would comment that in the interests of fairness it may be necessary to include any reports to case conference prepared by other agencies such as health visitors, particularly if a view favourable to the parents is expressed by them);
   
   e) Social work evidence should come from the social worker with direct knowledge of the case;
   
   f) Lack of knowledge or need for assessment does not of itself justify the making of an EPO;
   
   g) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice;
   
   h) Cases of sexual abuse where the allegations are inchoate and non-specific with no evidence of immediate risk will rarely warrant an EPO;
   
   i) Cases of fabricated or induced illness with no medical evidence of immediate risk of direct physical harm to the child will rarely warrant an EPO;
   
   j) Justices must give detailed findings and reasons for making an EPO and should refuse the application in a proper case, leaving the LA to make an application for an ICO (and consider immediate transfer to the county court or High Court).  Justices should also give separate reasons for any decision to deal with the EPO on a without notice basis;
   
9. Applying the principles from the cases cited above, a local authority and a court should consider:
   
   a) Is there any justification for an order interfering with this child’s right to family life?
   
   b) If there are any concerns established which might justify some sort of order, the court should prefer a less interventionist legal regime than an EPO / ICO with a removal plan.  Is there a way in which the concerns of the local authority can be met without the need for removal?
   
   c) Is there evidence of immediate risk of really serious harm or imminent danger actually established (and that cannot be contained without removal of the child)?
   
   d) Have the parents been properly involved in the decision-making of the local authority or afforded the proper opportunity to make their case before a decision is made?
   
   e) Are there extraordinarily compelling reasons which, exceptionally, might justify the draconian and extremely harsh measure of removal under an EPO?
   
   f) Is the order being considered really aimed at ensuring assessment of the child (not in itself sufficient justification for removal)?
   
   g) What evidence can be filed in support of the application? Is it full, detailed, precise and compelling? 
   
   h) What proposals are there for contact the child and either of her parents?  These need to be clear and substantial;
   
   i) Has a case conference been held and the minutes made available? Has the parent been given a copy of the CPC minutes?  Are there other relevant documents which the court will expect the parents to have seen?
   
   j) Has the local authority carried out a meaningful assessment of the family and can it produce evidence of its conclusions?
   
   k) Is the local authority concerned because it cannot get evidence or an agreement to an assessment?  This will not by itself justify the making of an EPO if other remedies can be implemented.
   
   l)  Can removal be justified before a Guardian has been appointed?

With the introduction of the Public Law Outline (the PLO) (now being piloted in London and nine other centres) fast approaching (April 2008) local authorities are going to be under a greater duty to carry out assessments and give clear information to parents about their intentions before proceedings have been issued. 

There is a document on the Legal Services Commission website which sets out the framework for the PLO as it will affect local authorities. 

“Local authorities will be expected to submit better applications to the court, ensuring all kinship options have been fully explored and all relevant assessments are completed before applications are made to the court. …."

While this is to be specifically included in the new guidance, it is very likely that local authorities in the initiative areas should already only make section 31 care and supervision orders on the basis of completed core assessments and with care plans already prepared. If certain pre-proceedings action has not been taken, the judge and/or legal adviser will consider issuing standard directions to ensure this work is taken forward as the case progresses. Although it is not expected that the new guidance will be implemented until November this year, following the consultation process that is due to be launched in June, this will not prevent local authorities from continuing to comply with court directions made during the course of proceedings in the usual way. The new PLO, as currently drafted, seeks explicitly to take account of the content of the statutory guidance to local authorities.” 

 
The PLO documentation circulated so far does not make any specific mention of the management of EPOs or interim care hearings.  However, the Explanatory Note of Key Changes in the PLO refers to a pre-proceedings fairness requirement:

• A statement and explanation of expectations in plain language in order to avoid proceedings wherever appropriate – the Outline Care Plan;
• Compliance with re-written and concurrently published DfES Guidance on Framework Assessments, Care Planning & Child Protection – completion of core assessments in all non-urgent cases pre-proceedings;
• A simple statement of the local authority’s case.

As part of the PLO initiative Cafcass is expected to appoint officers to deal with the case from the outset, ie within two days of the case being set down for directions (back to the good old days when Cafcass Officers / Guardians get to appoint the solicitors?).   It is emphasized that Cafcass Officers will need to scrutinize the cases carefully to ensure that any gaps in the evidence are identified.  Generally the emphasis is moving towards a greater analytical and advisory role on behalf of Cafcass. 

However, the author doubts whether this is going to be practically possible in relation to EPOs or interim removal applications arising from genuine emergencies.

From October 2007 parents can obtain pre-proceedings legal advice (Family Help Lower / Level 2) if the local authority has issued a notice of intention to commence care / supervision orders.  The stated intention of the LSC is to ensure that parents and those with PR have access to legal advice before proceedings are started.

The author has not yet seen a copy of the PLO briefing packs to see what advice is being given to local authorities about when they should issue a notice of intention to start proceedings.  The concern must be that local authorities may not do so until it is too late for representatives to make a contribution to the setting up of assessments and that the parents’ lawyers may find it more difficult to attend Child Protection Conferences.

The greater burden on local authorities to prepare their case early may prove beneficial to lawyers for parents, provided it is not undermined by the funding changes and disclosure is given in good time.  Social Services Departments will need to consider at a very early stage whether interim removal is likely to be sought and in doing so should bear in mind the above points from the authorities.  Clear legal advice should be obtained both as to whether to issue proceedings and whether to apply for interim removal.   Social Services Departments would be well advised too, to follow the advice given in the current Protocol and the authorities as to the instruction of experts.   Any pre-proceedings assessments should be set up with proper letters of instruction which take account of any disputed facts, the need for transparency etc.  Parents’ lawyers in receipt of a notice of intention to issue should immediately ask for confirmation of the local authority’s intentions as to interim removal if this is not clear, and extensive documentary disclosure, in particular of any instructions given to assessors and evidence in relation to immediate harm.   Other documents to insist on include initial and core assessments, kinship assessments, any s 37 report, any individual agency reports such as probation or reports to CPC from health visitors and the like, notes of strategy discussions, minutes of any meetings with families, chronology, schedule of proposals of findings sought.  An outline care plan will be a document which is routinely required to be produced by the local authority.   All of these documents will theoretically be required to be filed with the local authority’s application or (again theoretically) no directions hearing should be listed, so parents should be able to expect these documents to be readily available and the sooner they are seen and instructions taken, the better.

It will not be difficult to extrapolate from the combination of the above cases and the PLO fairness requirements, points which may assist in providing ammunition against the local authority if the local authority does not approach the initiation of proceedings and especially applications for interim removal with extreme caution and careful appraisal and act at all times as if the parent’s lawyer was sitting on its shoulder. 

Jacqui Gilliatt

4 Brick Court

Chambers of Janet Mitchell

Temple London EC4Y 9AD

Tel: 020 7832 3200

http://www.flwblog.lawweek.co.uk

http://bloodyrelations.blogspot.com