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Cite as: [2013] EWHC B41 (Fam)

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Neutral Citation Number: [2013] EWHC B41 (Fam)
Case No. DJ12C08170


64 Victoria Street
7th October 2013

B e f o r e :

(Sitting as a Deputy Judge of the High Court)


In the matter of:


Transcribed from the Official Recording by
AVR Transcription Ltd
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Counsel for the Local Authority: MR. BUCHAN
Counsel for the Mother: MR. FIRBANK
Counsel for the Father: MR. THOMAS
Counsel for the Children: MR. ROTHERY
Counsel for Lancashire Constabulary: MR. DALAL



Crown Copyright ©

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of the family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

  1. THE JUDGE: I have been concerned with the welfare of three children in this case.
  2. The children with whom I am concerned are:-
  3. K, a boy, who is three years and three months old (born on 19th July 2010),

    N, a girl, who is 18 months old (born on 17th April 2012) and

    A, also a girl, who is eight months old (born on 14th February 2013).

    The local authority, represented by Mr Buchan, has made applications in respect of each of those children for care orders and placement orders. The mother, represented by Mr Firbank, has courageously conceded she does not have the capacity to care for the children herself within their timescales and she neither consents to nor opposes the local authority applications for K and N.

    The father of A, who was represented by Mr Thomas of counsel during the hearing and by his solicitor Miss Rees this morning, seeks to care for A or, in the alternative, have his parents care for her.

    His case is in very large measure supported by the children's guardian, Dawn Whittaker who was represented by Mr. Rothery of counsel during the hearing before me and who is represented today by Miss Bentley of counsel. The children's guardian supports the local authority case in respect of K and N namely the making of final care orders and placement orders in respect of them. The threshold criteria have been conceded by the parents to be made out in accordance with a document dated 20th February 2013 that was prepared for an interim hearing by counsel for the local authority. The evidence supporting the schedule of facts is filed in the court bundle and not challenged. I am therefore able to find that the threshold criteria are made out in accordance with that document save for one issue which I will deal with later.

    The mother's application for declaratory relief in respect of alleged breaches of her rights under the Human Rights Act 1998

  4. The mother, who I am going to refer to as CC, seeks declarations pursuant to section 7 of the Human Rights Act 1998 that her rights pursuant to Article 6 and Article 8 of the European Convention on Human Rights have, by reason of the conduct of the social work team employed by Lancashire County Council on 18th February 2013, been breached. Lancashire County Council is the defendant to that claim. Her claim was initially issued on 19th February by way of Part 8 procedure and has been treated as consolidated within the care proceedings. That seems to me to be in accordance with the practice approved by the Court of Appeal in the case of Re S [2010] EWCA CIV 1383. I first dealt with this case on 18th February 2013 in the county court, on a first appointment in respect of A's case, and I transferred the matter to the High Court. Mr. Justice Cobb, therefore, dealt initially with the contested interim care order, gave directions for the declaratory proceedings) and conducted two hearings on 7th March and 21st March 2013. The case was thereafter released back to be heard by me sitting as a Deputy Judge of the High Court to deal with both the care proceedings and the consolidated Human Rights Act declaratory proceedings.
  5. At an early stage of the Human Rights Act proceedings it became clear that the local authority's case was that officers of the Lancashire Constabulary of Police had acted independently of the local authority in carrying out the acts complained of by the mother as the basis of her Human Rights Act action, and that raised serious criticism of those officers as well as of the social work team. Thus the Lancashire Police have attended and been represented and participated at relevant hearings both in front of Mr Justice Cobb and in front of me, although they have not been made defendants in the Human Rights Act proceedings and are not parties to either set of proceedings. No declaration has been sought against them. However, any survey of the events which form the basis of the mother's action under the Human Rights Act necessarily involved the scrutiny of the conduct of the officers involved and it was therefore appropriate and proper for the police to be invited to attend and to be represented. They have had the advantage of representation by Mr Dalal of counsel during the hearing before me.
  6. As I have already set out, the approach of Lancashire County Council during the hearing which I have conducted has been to accept responsibility in general for the completely inappropriate procedures adopted on 18th February 2013 and to concede that declarations should be made and to apologise to the mother. It was the account of the Local Authority witness that the instigator of A being received into police protection on that day was DC K. DC K was the instigating officer of the section 46 process, to use the language of Home Office Circular 017/2008 which provides guidance to officers as to the proper use of that process.
  7. Originally the mother's human rights action incorporated a claim for damages. This was compromised and withdrawn at the first hearing when Lancashire County Council made concessions as to the unlawfulness of their procedure and reimbursed the mother's solicitor the monies she had expended upon a modest hotel for the mother to stay at in order to remain close to A after the mother was discharged from hospital and before A was removed to foster care. I was concerned, therefore, only to consider whether to make declarations setting out that the local authority acted in breach of the mother's rights under the European Convention and how they had done so. The local authority conceded that such declarations could and should be made, and in very large measure conceded the terms of such declarations. They would not concede any declaration that the local authority should have sought an emergency protection order pursuant to section 44 of the Children Act 1989 when they erroneously believed that a contested ICO could not take place. The police have made no concessions at all as to the process adopted by their officers on that day.
  8. The mother's case was, therefore, not brought to pursue monetary compensation but rather to achieve a scrutiny of what went on that day, and the hearing proceeded with evidence about the events which led to A being placed in police protection on 18th February in order for me to determine what had happened that day. This was despite the substantial concessions of the local authority at the suggestion and with the agreement of all parties before me with the possible exception of the police who, in any event, raised no objection to the evidence being heard. Indeed Mr. Dalal of counsel was enthusiastic that I should hear the evidence of their witness, DC K.
  9. The background to the proceedings

  10. CC is the mother of the children and is herself only just 18 years of age (born on 10th May 1995). The fathers of K and N have not participated in these proceedings. They are named by the mother as LP, a Sri Lankan national who is now deported and who is said to be K's father, and SA, an Indian national who is said to be N's father who is also now deported. The father of A is AAMW and he is also a Sri Lankan national. He has participated fully in these proceedings. He was in a relationship with the mother from about the time of her pregnancy with N until June 2013. The maternal grandmother is CHC, who became a party to the proceedings in order to pursue an application for a residence order in respect of the children. She applied and was granted permission to withdraw that application earlier this week and ceased to be a party at that point, although she remained in court to support the mother during the hearing. I reserved my judgment until this afternoon. The hearing was conducted last week. The mother and the grandmother have felt unable to attend this final day of the proceedings. Each of them has written heartfelt letters to me setting out their feelings about what has gone on and why they are not here today.
  11. The local authority brought care proceedings in respect of K and N on 2nd January 2013, they having been accommodated in foster care since 18th December 2012 after being removed from their mother's care on 18th December by being taken into police protection, and then on 20th December 2012 being made subject to emergency protection orders. The mother was just 15 when she gave birth to K, just 17 when she gave birth to N and was still only 17 when A was born. Her family have been known to social services for a number of years and the mother's childhood itself was problematic in the extreme. She demonstrated severe difficulties with her own conduct, including self-harming, antisocial and criminal behaviour and other risky behaviour, including relationships with much older men. It is unlikely the mother was given, during her own upbringing, any blueprint of acceptable standards, and when her own children were born concerns escalated. I note her account that her difficulties were exacerbated as each child was born, and that seems to me to be highly likely to be the case. Those concerns which escalated were directed at poor supervision of the children, poor home conditions and neglectful parenting generally, together with the pursuit of a lifestyle which was quite inconsistent with the care of children including a persistent problem by the mother with alcohol abuse.
  12. As I have said, the threshold criteria pursuant to section 31 of the Children Act are conceded to be crossed by both the mother and the father. Possible non-accidental injury was not a feature of the case until December 2012 when K was found to have bruising to the pinna of his ear considered by a clinician at the time and later by a paediatrician instructed within the proceedings to represent a possible inflicted injury. The issue of whether there was any inflicted injury is the only aspect of the threshold criteria which is in dispute, and both CC and AAMW deny inflicting any injury upon K. The local authority has taken the view that in the context of the very serious surrounding concerns which are conceded by the parents that it is not necessary to pursue any findings in relation to non-accidental injury. I endorse their approach. The parents have also conceded, properly and realistically, that the determination of whether there was any inflicted injury or not and, if so, by whom would not impact upon the outcome in this case. In other words they have each conceded that the other concerns are sufficiently serious without that finding. Incidentally no charges have been brought in connection with the injury sustained by K by the prosecuting authorities.
  13. Background to the Application for a Declaration
  14. (The events were originally set out in the chronology annexed to the order I made on 18th February in order that Cobb J would have a summary of the events he was to deal with). The following summary includes additional matters gleaned from the evidence I have read and heard. On 6th February 2013 at a case management hearing in respect of K and N, Lancashire County Council confirmed to District Judge Bland at that hearing that it intended to pursue a care plan of removal of the mother's unborn child; the mother at that point being very heavily pregnant. The mother's wish to oppose this plan and the need for the court to scrutinise and approve it were, from that point, well known to the local authority. On 12th February 2013 the mother's solicitor alerted both the local authority and the children's guardian to the fact that the mother was to be induced and that her third child would, therefore, be born imminently.

  15. On 14th February A was born at Lancaster Royal Infirmary (I think in the end she did not need to be induced). The hospital at that point notified both Lancashire County Council and the police of that birth. The mother's solicitor also notified the local authority and the children's guardian of that birth. The mother's case at that point was clear - not that there was not a need for intervention in the case of A or a need for protection, but, that the risks in respect of her were such that they could and should be managed by placing mother and A together in an invigilated placement where they could be monitored. The father agreed with that proposal. The local authority did not at that point agree. It seems clear from the emails sent by the guardian's solicitor on 18th February that, had she been appointed for A, the children's guardian would have agreed with the mother's case.
  16. On 15th February the mother was discharged from hospital at 7.00pm. Her solicitor then paid for her to stay in a Travelodge Hotel close to the Lancaster Royal Infirmary in order for her to be able to maximise her time with A and to continue to breastfeed her. On 18th February during the morning, the mother's solicitor being aware that the social worker and police were in attendance at the hospital, communicated to the local authority's solicitor an intention on behalf of the mother to make an application for injunctive or prospective declaratory relief as to the lawfulness of a police protection. During the morning of 18th February the mother's solicitor was in attendance at the Lancaster County Court anticipating the issue of care proceedings and pressing for an urgent listing of a contested interim hearing. The plan of Lancashire County Council was to place A in foster care and separate her that day from the mother. At approximately 12.40pm, after the mother's solicitor had informed Lancashire County Council of her stance and the proposed interim hearing, A was taken into police protection.
  17. At 3.40 pm on 18th February the local authority's application in respect of A was received by the court electronically. It seems that other parties had received that application earlier in the day and I cannot say at this stage why it was that the court did not receive it until 3.40. There may be some technological issues but that seems to me to be not the point. Had the local authority attended at court a hearing could have taken place without the formal processing of the application. There was no need to wait until 3.40. At the point of issue District Judge Bland and I jointly carried out gatekeeping and agreed that it was appropriate for the contested ICO to be heard by a High Court Judge of the Family Division having regard for the anticipated legal challenge by the mother's team to the lawfulness of the police protection procedure which had by then already been adopted to achieve a placement of A in foster care and a separation of mother and child. Therefore, a short hearing only took place before me on 18th February during which I listed the matter before Mr Justice Cobb for Thursday, 21st February in order for a contested interim care hearing to take place and for the mother's team to argue that the police protection procedure in this case has been both inappropriate and unlawful, having been in breach of the mother's and A's Article 6 and 8 rights under the Convention. At that hearing I expressed an expectation that the local authority would use their best endeavours to unite mother and A in a safe placement pending the hearing before Mr Justice Cobb. Indeed that is what happened later and the mother and A were placed together in a foster home.
  18. The Law

  19. By section 46(1) of the Children Act 1989 :
  20. "Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm he may;
    (a) remove the child to suitable accommodation and keep him there, or,
    (b) take such steps as are reasonable to ensure the child's removal from any hospital or other place in which he is then being accommodated is prevented."

    Subsection (2) reads:

    "For the purposes of this Act a child with respect to whom a constable has exercised his powers under this section is referred to as having been taken into police protection."

    The subsequent subsections lay down the statutory obligations upon the police once a child has come into police protection to alert the relevant local authority, the child and the parents of the steps that have been taken. It is of note that section 46(7) enables the designated officer to apply for an emergency protection order whilst a child is in police protection. The designated officer is an officer appointed in accordance with section 46(3)(e) to enquire into cases where children have been taken into police protection. Home Office guidance, to which I have already referred, requires such an officer to be of the rank of Inspector or above. In A's case the designated officer was Inspector BL.

  21. Section 44 of the Children Act 1989 enables emergency protection orders to be sought from the court when the criteria for them are made out.
  22. Section 44(1) reads:

    "Where any person ('the applicant') applies to the court for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that;

    (a) there is reasonable cause to believe that the child is likely to suffer significant harm if;

    (i) he is not removed to accommodation provided by or on behalf of the applicant; or
    (ii) he does not remain in the place in which he is then being accommodated."

  23. Section 38 of the Children Act 1989 sets out the regime for making interim orders and the threshold criteria for interim care orders. Both section 44 and section 38 provide a court procedure whereby both threshold criteria and the need for removal can be judicially invigilated, with all parties having an opportunity to be heard on both aspects; that includes the child through his or her Children's Guardian and legal team. I pause to say that it must have been perfectly clear to all parties on 18th February 2013 that the parents' case was not as to the need for intervention or as to threshold, but as to the need or not and as to the proportionality of the separation proposed. Under section 38 in contested interim care proceedings the court has a duty to scrutinise and approve the local authority care plan, and in cases involving removal of children from their parents, particularly infants, the court will carefully examine the need for separation to manage any risk established, the principle being absolutely clear that in general the least intrusive intervention is always to be preferred. I do not propose to go through the long line of authorities which set out those principles. No party before this court disputes them. It is equally clear that the only forum for arguing how or what that intervention should be in is the Family Court, whether in the FPC, the County Court or the High Court.
  24. I turn now to the Human Rights Act 1998 and by section 1 of that Act a number of Articles of the ECHR were directly enshrined into UK law. The relevant Articles for these proceedings are Article 6 and Article 8. It is not often it is necessary in a case to read into a judgment the actual Article but I in this instance I do pause to read parts of Article 6 and Article 8 into this judgment. Article 6(1) reads as follows:
  25. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    Article 8 reads as follows:

    "(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
    (2)E+W+S+N.I. There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    There is no question that the separation of an infant from her mother at birth engages both of those Articles absolutely and starkly. Section 6 of the Human Rights Act states:

    "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

    Section 7 of the Human Rights Act reads as follows. I will read only the relevant parts. Subsection (1):

    "A person who claims that a public authority has acted or proposes to act in a way which is made unlawful by section 6(1) may;
    (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or,
    (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is or would be a victim of the unlawful Act."

    The procedure therefore, adopted by the mother's legal team in pursuing an application for a declaration intended to be heard at the same time as the care proceedings seems to me to have been an appropriate procedure, as approved by the Court of Appeal in Re S.

  26. I turn to the case law on section 46, which is helpfully derived from three Court of Appeal authorities. The first is the case of Langley –v- Liverpool City Council [2005] EWCA Civ 1173, [2006] 1 FLR 342. The Court of Appeal in that instance were Lords Justices Dyson, Thorpe and Lloyd. The decision considered the interplay between emergency protection orders and section 46 in the context of an out of hours removal of a child from a family home by police after an EPO had been granted but not executed. The Court of Appeal were unanimous that section 46 could be exercised in respect of a child subject to an EPO but in coming to their conclusions about that particular case they surveyed the statutory scheme and the following paragraphs are of significance and relevance to A's case.
  27. Paragraph 38 (from the judgment of Lord Justice Dyson): -

    "In my judgment, the statutory scheme clearly accords primacy to section 44. Removal under section 44 is sanctioned by the court and it involves a more elaborate, sophisticated and complete process than removal under section 46. The primacy accorded to section 44 is further reinforced by sections 46(7) and 47(3)(c). The significance of these provisions is that they show that it was contemplated by Parliament that an EPO may well not be in force when a removal is effected under section 46, and that removal under section 46 is but the first step in a process which may later include an application for an EPO."

    He goes on to say at paragraph 40:

    "I would, therefore, hold that; (i) removal of children should usually be effected pursuant to an EPO, and, (ii) section 46 should be invoked only where it is not practicable to execute an EPO. In deciding whether it is practicable to execute an EPO, the police must always have regard to the paramount need to protect children from significant harm."

    Paragraph 76 (from the judgment of Lord Justice Thorpe):

    "It is to be emphasised that even in emergency the local authority must apply in the Family Proceedings Court for an order and prove the need for the order to the satisfaction of the court. This is a potent check on the local authority's powers of intervention in emergency."
  28. The second Court of Appeal authority to which I have been referred by Mr Dalal is that of A –v- East Sussex County Council & The Chief Constable of Sussex Police. This is a decision of Lords Justices Carnwath and Jackson and Mr Justice Hedley reported at [2010] EWCA Civ 743. Mr Dalal referred me to this authority because he thought that the facts were similar to the facts in A's case. In that case the mother sought damages under section 7 of the Human Rights Act to compensate her for what she argued was an unlawful removal of her child from hospital and, therefore, her care. There was a suspicion that her presentation of her child was consistent with her demonstrating factitious illness syndrome. Section 46 was used to remove him to foster care after he had been in hospital for five days following a decision that he was ready for discharge medically. The mother in that case wished to take him home and there would have been nothing to stop her. Two days later at the FPC (Family Proceedings Court) a plan to place both in a mother and baby home was approved. The assessment of them was positive and the proceedings were eventually discontinued. The reported decision is upon the mother's separately brought Human Rights Act action. The first instance judge had decided that the mother's expressed intention not to co-operate and the risk that she might walk out of the hospital with the child justified the decision to remove the child from her by way of section 46. In that case the local authority had arranged an on notice hearing on 31st December and, therefore, correctly anticipated on 29th December, which is the day of the event complained of by the mother, that it would not be until two days later that a court decide whether such separation was justified. The mother's withdrawal of co-operation and the risk that she would move the child from hospital was a precipitating factor in that case. The Court of Appeal considered that the judge was entitled to come to this conclusion and were not persuaded to overturn it. I consider that the ultimate decision turned on its own facts which are distinct from the facts in this case. However, there are paragraphs in the judgments delivered which seem to me to be relevant to A's case:-
  29. Paragraphs 22 and 23 (from the judgment of Mr Justice Hedley)

    "However, whilst I am satisfied that the judge was on the evidence entitled to take the view that what occurred was in the circumstances neither unlawful nor disproportionate, I am left with the distinct impression that things could have been handled rather better than was in fact the case. It may, therefore, be helpful to indicate what sort of approach should be taken in circumstances such as these which, though fairly unusual, will be familiar to any experienced child protection practitioner."
  30. "It is essential to stress that even in an emergency it is desirable, where possible, to work in partnership with a parent. Parents can, with careful and sympathetic explanation, be brought to agree to regimes of supervision or to the child remaining in hospital, or even to voluntary accommodation under Part III of the Act for a brief period. Where parents have access to a solicitor (particularly where, as here, he or she is available), then the solicitor should be apprised of the local authority's concerns and proposals and then be invited (if the solicitor thinks it proper to do so) to give advice to the parent. Even where emergency powers are obtained under section 44 or exercised under section 46, least interventions are best. For example, the police have power to prevent a removal from hospital. In the circumstances of this case it would have been surprising had the hospital, if pressed, refused to keep the child for an extra two days. The removal of the child to a known destination (e.g. a relative) is to be preferred to removal to a stranger. If, however, there is removal to a stranger, the parent should, in the absence of good reason (e.g. abusive or irrational behaviour) be informed of the fact and be allowed to pass relevant information to the carer and speedy arrangements be made for contact. If a court order has not been obtained or obtained ex parte, an inter partes hearing should be arranged as soon as possible. The learned judge described a hearing two days hence as 'creditable' but it should also be the norm. It goes without saying that where practicable an order of the court should be sought in preference to the use of section 46 powers."
  31. He goes on to say at paragraph 25:
  32. "Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow. If they take action which ultimately turns out to have been unnecessary, they will have caused distress to an already distressed parent. On the other hand they are also invested with or have access to very Draconian powers and it is vital that, if child protection is to command public respect and agreement, such powers must be exercised lawfully and proportionately and that the exercise of such powers should be the subject of public scrutiny."

  33. I consider that whilst A's case is in some ways similar to the East Sussex one, it is different on its facts significantly. The police and social services in the East Sussex case were faced with a mother who wanted to remove her baby from hospital. That was not the case in A's case. It was the hospital who wished the baby to leave. The mother was co-operative and indeed the father was co-operative. They were merely refusing to agree, pursuant to their own legal advice, to section 20 accommodation. The local authority knew the mother's wish was simply to remain with her child and that she was following advice in not agreeing to section 20. In all other respects she was willing to co-operate and work with them to secure the management of the risks they perceived. The crisis was not one of non-co-operation by her but by reason of the hospital wanting to discharge A on that day, although there is no evidence that they were pressing for discharge at the very point in time when the child was taken into police protection.
  34. The third relevant case on section 46 is that of Re S to which I have already made reference in talking of the procedure adopted by the mother's team here. The Court of Appeal were Sir Nicholas Wall, the President of the Family Division, and Lady Justice Arden and Lord Justice Wilson (as he then was). In that case on the appeal of the local authority the Court of Appeal did overturn the findings of the first instance judge that the local authority had acted in breach of the mother's Article 6 and 8 rights. However, the following paragraphs set out the court's preferred approach to the circumstances in which section 46 should be operated.
  35. Paragraphs 66, 67 and 68 (from the judgment of the President of the Family Division, Sir Nicholas Wall) :-


    "It is also right to say, I think, that the separation of mother and child under an ICO in care proceedings is, for good reason, usually a judicial as opposed to an administrative decision. The court is the parent's safeguard against arbitrary or inappropriate action by a local authority. Thus in the overwhelming majority of the cases, it will be for the judge or magistrates to make the decision. I can thus readily understand Her Honour Judge Finnerty's view that both she and the Family Proceedings Court were, inappropriately, being presented with a fait accompli.


    "For the local authority to succeed in this appeal, therefore, the facts have to be regarded as wholly exceptional."

    The President goes on at paragraph 68, having dealt with some of the facts of that case:

  36. "In anything other than wholly exceptional circumstances, the rule must be that it is for the court to make the relevant decision unfettered by events which effectively curtail its powers. The question, therefore, is whether or not the current case can be said to be 'wholly exceptional'."

    He went on to find that it was.

  37. At this point it is useful to refer to the Home Office Circular 17/2008, to which I have already made reference, helpfully provided to me by Mr Firbank. That Circular issues guidance to the police in the use of their powers under section 46. There had been earlier guidance both in 1991 and 2003 and I suspect that the 2008 guidance was issued after the Liverpool case to which I have made reference to reflect the law as it emerged from that case. Paragraph 3 of the guidance reads as follows:
  38. "The provisions of the Act aim to strike the proper balance between the provision of speedy and effective help to children at risk and unwarranted interference in family life. The underlying principle of the Act is that the welfare of the child is paramount."

    The guidance goes on to say at paragraph 15:

    "Police protection is an emergency power and should only be used when necessary, the principle being that wherever possible the decision to remove a child/children from a parent should be made by a court."

    It goes on to say at paragraph 16:

    "All local authorities should have in place local arrangements (through their local Chief Executive and Clerks to the Justices) whereby out of hours applications for EPOs may be made speedily and without an excess of bureaucracy. Police protection powers should only be used when this is not possible."
  39. During the evidence, which I am about to summarise, it became obvious that DC K had gone to the hospital on 18th February to assist ML, who was then the recently allocated social worker, to persuade the mother to agree to section 20 accommodation for A and to explain that the alternative would be section 46. It seems to me, however, that had they succeeded in the persuasion that they were about to undertake that also would have been open to criticism on the authorities, and I derive that conclusion from two first instance decisions to which I was referred.
  40. The first is Re CA [2012] EWHC 27 a decision of Mr Justice Hedley in. which he said simply:

    "The use of section 20 is not unrestricted and must not be compulsion in disguise."
    The second is Surrey County Council –v- M, F & E [2012] EWHC [2400] a decision of Mrs. Justice Theis and at paragraph 60 she said this:-

    "To use the section 20 procedure in circumstances where there was the overt threat of a police protection order if they did not agree, reinforced by the physical presence of uniformed police officers, was wholly inappropriate. By adopting this procedure the local authority sought to circumvent the test any court would have required them to meet if they sought to secure an order, either by way of an EPO or interim care order."
  41. Although DC K and her colleague in A's case were not in uniform when they went to the hospital, the object here and the nature of the discussions that they were intending to have were exactly as discussed in those two paragraphs. Had the mother felt pressured to act against her solicitor's advice, it seems to me that the use of section 20 would have been open to parallel criticism and it would have amounted to an inappropriate coercion to co-operate in the local authority's care plan without that care plan having been properly scrutinised and approved in a hearing where all parties, including the mother and A, could have had a say.
  42. The Evidence

  43. The evidence from the local authority about what happened was given by ML, who made a written statement and gave oral evidence. ML is a social worker who qualified in 2012. She was allocated the role of key social worker to the children of this family very shortly before A was born. She had had to read her way into the case quickly and was liaising with DC K from early in her involvement. DC K had been involved with the family for some considerable time. The local authority social work team set out to commence care proceedings in respect of A as soon as she was born, and on Friday, 15th February a 15 page statement, a chronology and a care plan were sent by the team to the legal department which had been prepared by ML. Those documents arrived at the legal department after close of working hours on that day. The mother had already been asked and refused to consent to section 20 accommodation for A. The mother was discharged from hospital at seven o'clock that day but, as I said, A stayed on in the hospital in the neonatal unit. For medical reasons she had some difficulty regulating her temperature. On Monday, 18th February the hospital alerted the local authority to their desire to discharge A from hospital. She did not need to be there medically any longer and it was plainly not in her interests to stay any longer than absolutely necessary in hospital. The local authority was opposed to A going home with her parents. The statement of ML on 19th February makes no reference to the fact that mother was at that point seeking a mother and baby type placement, although her oral evidence made plain that the local authority was aware of the parameters of the dispute and were opposed, having discussed it on the Friday, to mother and baby type care at that stage. ML, in response to the hospital's communication that A should be discharged, contacted both the legal department and DC K. The legal department advice to her as to when a hearing might take place is not clear to me. It seems that she thought it would be Wednesday or Thursday. DC K was active in suggesting that she would have concerns if they went to her parents' care from hospital and that she would seek her superior's advice about police protection. It seems that it was at that point that a document was prepared by DC K and signed off by Inspector BL to permit police protection if necessary. That document which was scrutinised by Inspector BL during that day was produced during the hearing at my request; I have annexed it to DC K's statement.
  44. I have not yet said, during the course of this judgment, that had enquiries been made by the local authority earlier at court it would have become clear that the court could accommodate a contested interim care hearing that very day, that very afternoon, and the court was waiting in anticipation of such a hearing whilst the events at the hospital unfolded. An approach to the Court had been made by the Mother's solicitor when she anticipated a Local Authority application for an interim care order which would have been contested as to the plan for separation.
  45. I turn back to DC K's document. This document is a Lancashire Constabulary pro forma document prepared, presumably, in compliance with the Home Office guidance that I have read. It sets out the identity of the officer taking the child into protection, that is DC K. It sets out the details of the child. It sets out her location when taken into police protection, namely neonatal ward RLI. The paragraph under the heading "Reasons for Taking Child into Protection" reads as follows:
  46. "Baby is currently subject of a child protection plan (neglect). Parents under investigation on suspicion of physical assault towards older sibling."

    Those are the reasons as they are set out in their entirety on that form. The form goes on to record that the child was taken into police protection at 12.40 on Monday, 18th February and records the address to which she was taken. It seems to me from the evidence that the point at which the advice was taken, during the morning before attendance at hospital, was likely to be when that document was prepared.

  47. I pause to say that the grounds set out in that document appear to me to be thin and poorly reasoned. The use of police protection was seen by DC K as necessary by reason of the mother's lack of co-operation and failure to agree to section 20. That was referred to by both the social worker and DC K in evidence repeatedly as a mother refusing to work with or engage with the local authority. References were made in the written evidence of both witnesses to the mother's solicitor's demands as if those demands were in some way obstructive. That did not seem to me to be a proper approach to a young and vulnerable parent who was merely following her own legal advice properly given. In any event the social worker and two policewomen – I think there was also a student social worker there as well – met up at the hospital that morning. The social worker had invited the police to come and they had gone ready to use section 46 if necessary. There can have been absolutely no other purpose to the police officers attending on that day and this is confirmed by DC K's statement (from G203 in the Court bundle):
  48. "On Monday, 18th February 2013 Michelle Lee contacted me and said that the baby was ready for discharge but the parents are not agreeing to voluntary accommodation. I agreed I would attend the hospital to try and encourage the parents to engage with social services. I updated Inspector BL about the situation. Myself and DC L attended the neonatal to see the mother and father."

    It emerged during the evidence of the social worker that DC K was quite set upon asserting a need for separation to the social worker. I, frankly, do not understand why the efforts of the local authority were not directed at getting an urgent hearing to scrutinise the separation rather than at that stage enlisting the police to secure one as a backstop. I note again that the mother was not threatening to remove A from the hospital. Equally the hospital was reporting her care of A over the weekend as having been good. ML did have conversations with the local authority solicitor during the morning. She told me that she did not think a hearing on a contested ICO would be achievable until Wednesday or Thursday of that week and she did not consider it safe for mother to care for A until then. I think she was particularly concerned about overnight care. Privilege as to advice about why an EPO should not be used was not waived and I, therefore, do not know why that alternative, which would have afforded mother and father some voice in decision-making, if not the children's guardian as well, was not considered. In fact, had that alternative been investigated it would have become clear that a contested ICO before me was possible that afternoon. The real significance for me, therefore, is not whether or not the local authority legal advice as to EPO would be preferable but as to whether any effort was made to investigate or re-investigate whether an application for an EPO or an ICO could take place.

  49. One of the problems in this case was that those at the hospital, the social worker and the police officer, did not keep themselves informed about when the earliest court hearing could take place. They were not asking their superiors to press for such a hearing. I consider that both finding out and pressing for an earlier hearing were reasonable expectations in respect of both the social worker and the police officer in executing their duties under their statutory responsibility. Quite apart from this, even if a contested ICO hearing were not possible until the Tuesday or Wednesday or Thursday there is an onerous burden upon a local authority to find alternative arrangements during the delay which would hold the balance of protection and which do not require separation.
  50. I pause to say, as I said during the hearing, I have never known a hospital enforce a discharge in the circumstances that apply here. It may be that it will be the case that they will begin to in these straitened times and that the burden will, therefore, fall upon local authorities to be ready to devise other means of holding the balance and dealing with the situation which may arise. The approach of the local authority here seems to have been one of an unwillingness to seek to implement arrangements which held the balance between their preferred care plan and that of the mother unless and until they were obliged to do so by the court. It is, of course, right that once obliged to do so by the court they did so.
  51. I turn again to ML's oral evidence. I am satisfied that she personally did not know that District Judge Bland had indicated that any plan for separation would need to be scrutinised by the court. I am also satisfied that the purpose of the police being present in her mind was to have section 46 as a backstop. I am also satisfied that the decision to use the backstop was taken by DC K. DC K was, in my view, both by reason of the terms of the statute and also by reason of her greater experience in this case and generally, in the driving seat that morning. A came into police protection at 12.40 that day according to the documents. She was handed to ML, who took her immediately to foster carers. It was only in the car on the way there that she picked up messages from the local authority solicitors about the hearing that afternoon. By that time, of course, it was too late, the child was discharged from hospital and the situation could not be put back to what it had been before she picked up those messages. She carried on to the foster carers and left A with them. I do not criticise that decision. Once the child was discharged from hospital the options as to where she should go pending a hearing were extremely limited indeed.
  52. I heard oral evidence from DC K. I have already referred to her statement, but I have not yet read into this judgment the sentiments contained in that statement at the end, which I consider to be somewhat alarming. She says this:
  53. "I can categorically state that I was in no doubt that a police protection order was absolutely essential in order to keep A safe. I came to that informed decision having paid great attention to the background of this family, in addition to my recent involvement with them. Basically if this child had been allowed to return home with the parents then I would have been neglecting my role as a police officer. I am a child protection officer and that is what I did on that day. My actions were not at the instigation of the local authority."

    She did not draw back from that stance during her oral evidence. She is obviously a very experienced officer. She demonstrated pride in the role she holds in child protection. Her demeanour is pleasant and sensitive and I can well imagine that she has an excellent manner with both the parents and the children she encounters in the course of her duties. However, I consider her approach on 18th February in taking A into police protection at the point in time that she did to have been fundamentally flawed. It was plain that she went to the hospital with the intention, were mother not to agree to accommodation, of taking the child into police protection.

  54. Euphemistic language was used during her evidence about encouraging parents to co-operate or engage with the local authority. However, it is plain that in DC K's mind the co-operation could only take one form, namely agreement to section 20. When the mother, acting on her solicitor's advice, refused to consent DC K encapsulated her was "We can't just go up there and be blocked". Later I repeated this in asking her questions myself and she seemed to think that the word "blocked" was one that I had used and not her. I am quite clear in my note that those were her words. She failed to weigh into the balance the fact that the parents were co-operating with the local authority in every regard except with regard to a separation pursuant to section 20. They were not threatening to remove A; they were responding to their own legal advice; they had cared for A well on the ward. Not only did DC K have a low threshold for the need for intervention, which to my mind did not arise at all unless or until the hospital was to insist upon discharge and at that point the parents sought to go home with A, but she also seemed to pay little or no heed that the S46 route into to the care of the local authority is the one to be least preferred, affording, as it does, no right of argument or judicial scrutiny.
  55. I refer again to the document that she wrote, as I said probably in advance of attending the hospital, countersigned by her Inspector. It seems to me that it would be strongly arguable, that, even had the decision to go by section 46 occurred out of hours, the justification set out in that document is insufficient. I know that DC K in evidence advanced a lot of other reasons in addition to those set out in the document, but it is very important that the documents to be kept as records of when an authority is to take an action of such consequence as this one contain full reasons even if in summary and note form. She and Inspector BL both took as read that there could be no court hearing until later in the week and that an EPO was not an available route. I consider that both DC K and Inspector BL as the designated officer had a separate duty from the local authority to ensure, not only that separation and protection were absolutely necessary, but also that this route to it was absolutely necessary and that there was no prospect that a separation could be scrutinised or, if necessary, endorsed by a court. She should have been asking herself, "Why do I have to make this decision now?". So, however impressive DC K was in terms of her commitment and her demeanour, her failure in exercising such a draconian power to establish that this route to protection was absolutely necessary was unimpressive.
  56. I, therefore, came to these conclusions in respect of the Human Rights Act application. I remind myself of the irony that I was considering the evidence in respect of this case on a day when there were not one but two scandalous child death cases reported in the press, and indeed I would not want anything that I say in this case to discourage those involved in protection of children from courageous intervention to protect them. It seemed to me that everybody involved on 18th February 2013 was doing their best to promote the safety and welfare of A and to act professionally and appropriately. I do not consider anybody was motivated by an improper desire to circumvent proper procedure and the court process. The social worker was working under enormous pressure. Police and child protection authorities need to be ready to intervene protectively. The officer in this case is clearly zealous and confident of her ability to make the right decision, but the consequence of what they did on that day was that a mother, aged only 17 herself, was deprived of the opportunity of arguing that she and her four day old baby should be kept together, and, importantly, deprived her of the opportunity to argue that they could be kept together safely. The local authority has conceded that that was the case and has apologised profusely to mother. Unfortunately the police will not make any such concession. It seems to me that the outcome on the day was unfair. Mother was engaging with the legal process. There was no suggestion that she was going to leave the hospital. She was acting on the advice of her solicitor and, as I have said, the question that the social worker and the police officer should have been asking themselves was whether there was any other route of protection open to them.
  57. The separation of a parent and child by any authority is a most serious act and it must be necessary and proportionate. The gravity and importance of that principle is all the more acute where that child is a newborn and magnified when the mother of that child is herself a child. Protection of the child, of course, is a foremost priority but protection does not require in every case an enforced separation. There are a whole range of remedies before enforced separation, which is the absolute last resort. Decisions as to whether that protection is necessary should be made by a court, and decisions as to what course is the least interventionist necessary should be made by a court. There was a duty, it seems to me, not just on the social worker but on the police themselves to look at the route into protection. DC K did acknowledge in her evidence that separation is always the last resort. It did not seem to me there was any real acknowledgement that section 46 as the route of that separation is also the route of last resort. As I have said, the local authority has made concessions. The police are completely unapologetic. DC K was absolutely convinced of the need for intervention but she is ill equipped to look at the form of protection needed. Her assumption was that the local authority plan for separation was the only route and she made no or no sufficient effort to find out whether a court was available to weigh up the alternatives. She was far too ready to assume responsibility and take the decision without acknowledging that it was for a court to determine what was necessary and proportionate. That type of decision making is quite understandable late at night, at weekends, at Bank Holidays, in the context of parents determined to not work with the local authority, demonstrating violence or threatening to snatch a child from where that child is considered to be safe. None of those things applied here.
  58. The Mother has not brought any action against the Police for Human Rights Act declarations and remedies. I am therefore going to make the declarations which are conceded by the local authority.
  59. The relevant parts of those declarations read as follows:-
  60. Lancashire County Council has acted incompatibly with the rights of CMC, as guaranteed by Article 6 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950 in that it:

    •    Failed to complete its pre-birth assessment and that consequent pre-proceedings steps were not taken (article 6 and 8).

    •    Failed to issue its application for a care order and an interim care order at the time of A's birth to enable there to be consideration by the court of whether to exercise its powers prior to her discharge from hospital. (article 6 and 8).

  61. I am not going to go further than those declarations but I do order that this part of this judgment be transcribed in order that it might be published. I was told during the hearing that a senior manager of the local authority social services department was present at court during part of the evidence and expressed through Mr Buchan an intention to review the local authority's practice in future. I very much hope that that review of good practice for the future will be undertaken in partnership with the police at a higher level than either DC K or perhaps even Inspector BL. I note what was said by Mr Rothery in his submissions that it is the experience of the children's guardian in this case that this is not an isolated incident of an over willingness to use section 46 in this area. If that is the case it is very much to be hoped that better practice will emerge from this hearing, hence I have taken some time and trouble to deliver that part of the judgment.
  62. Mr. Dalal was asked to consider whether he wished to leave Court at this point. He did so.

    (End of this part of the Judgment. There followed a separately transcribed judgment as to the outcome for the children which is not to be published)

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