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England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> ABC & Ors v Derbyshire County Council & Anor  EWHC 986 (KB) (28 April 2023)
Cite as:  EWHC 986 (KB)
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MANCHESTER DISTRICT REGISTRY
1 Bridge Street West
B e f o r e :
| (1) ABC
(3) GHI (BY HER LITIGATION FRIEND, DOT)
(4) JKL (BY HIS LITIGATION FRIEND, DOT)
- and –
|(1) DERBYSHIRE COUNTY COUNCIL
(2) THE CHIEF CONSTABLE OF THE DERBYSHIRE CONSTABULARY
Steven Ford KC and Rose Harvey-Sullivan (instructed by Browne Jacobson LLP) for Derbyshire County Council
Dijen Basu KC and Matthew Holdcroft (instructed by East Midlands Police Legal Services) for the Chief Constable of the Derbyshire Constabulary
Hearing dates: 31 January, 1, 2, 3, 6, 7, 8 and 9 February 2023
Oral closing submissions: 3 March 2023
Further written submissions: 8, 15 and 21 March 2023
Crown Copyright ©
Mrs Justice Hill:
Section 2: The evidence and issues in overview;
Section 3: The factual background;
Section 4: The legal framework and relevant guidance;
Section 5: The expert evidence;
Section 6: The negligence claims against D1;
Section 7: Limitation on the HRA claims;
Section 8: The Article 8 claims against D1 and D2;
Section 9: The negligence claims against D2;
Section 10: The false imprisonment and Article 5 claims against D2;
Section 11: The Children Act 2004, s.11 and Article 3; and
Section 12: Conclusion.
2: The evidence and issues in overview
3: The factual background
3.1: The safeguarding referral, 3 March 2017
3.2: Whether a 'reporting' agreement was reached between ABC and DEF and Dr S after the in-stay and if so, whether it was breached by ABC and DEF
3.3: Whether Dr S advised ABC and DEF to stop the oxygen treatment for JKL
3.4: The first multi-agency strategy meeting, 9 March 2017
3.5: Further evidence obtained before the second strategy meeting
3.6: The second and third strategy meetings
3.7: The 3 May 2017 communications from the medical professionals
"I don't think anyone can be certain as to whether mums beliefs around the children's health is fabricated or is developed from her own mental health problems. It is irrelevant because the children remain at risk of significant harm either way and CSC [D1's Children's Social Care team] intervention is required…CSC will be struggling with this case. They will not be sure as to whether the right course of action is application for a care order or normal child protection processes including a child protection plan. Due to the absence of immediate risk and lack of understanding re mothers motivations and ability to change, if I was a SW I'd be going for the latter. I'd go for proceedings if mother can't change".
"I am not sure you [Dr S] can help any further. You are acting as the treating physician here. We, as a department, have said we are concerned. This concern (to put it bluntly for social care) is that we think the children are victims of FII at a level of the balance of probability. […] it is now for CSC and Child Care Legal to decide how they manage this. They could decide that threshold has been crossed and commence Proceedings. An independent expert report would be sought on behalf of the Court. They might form the view that, as the concerns are now widely understood by all those interacting with the children, and because the concerns have not involved major intervention eg like surgery etc, that this could be managed without Proceedings. Here the risk would be that opinions far outside our remit and control have been obtained for them – some of them privately for dubious reasons. It would be difficult to ensure that these other opinions were shared with professionals working with the family without an order."
"This is all a little unusual and not the way that my colleagues and I understand that FII case investigations are conducted. I have already provided comprehensive chronologies for both children and shared these at the initial meeting. The unanimous view of my colleagues and I is that there are significant concerns that these children are at risk of harm, primarily emotional harm because of restrictions placed upon them and evolving reported medical issues. The above chronologies do not provide any new information to that which has already been shared. This is clearly a very difficult case, but the next step is for Children's Social Care and the Legal Team to decide how best to manage this situation. If the way forward is unclear then it would be sensible to invite the local Designated Doctor to the next meeting for her valuable opinion and input - and this is what I would suggest. We are not concerned about immediate harm and so this can be arranged so that all those involved can attend. As the treating doctor, I also need to be at future meetings, but do need more notice than a few days."
"She said it's not the usual way for FII cases and that she has given everything she can give. She said it is not her job, but everyones together. She said there is no new information in the chronologies to change her view. She does feel there is risk of significant harm, but she does not think the children are going to be poisoned or at immediate harm, so there is time to plan. She said that it is a difficult case and needs to be decided how to manage it and she is not an expert witness. She said that the designated Dr K should be included."
3.8: The fourth strategy meeting, 12 May 2017
3.8.1: The meeting notes
3.8.2: The purpose of the meeting and the key discussions
3.8.3: The decisions reached at the meeting
"After careful consideration and deliberation it is felt that on balance that the children are potentially experiencing emotional and physical harm. When considering the possible ways forward the safest option appears to be care proceedings because there is strong evidence suggesting that mum does not adhere to the agreements made with health professionals, indicating that she would not adhere to the requests made under child protection.
The chronology highlights that mum has not listened to Dr S's requests, therefore indicating that she is willing to disregard professional advice and act in a cover manner.
A Child Protection Plan is only safe if parents agree to work alongside it, openly, honestly and transparently. The evidence indicated that this is unlikely therefore; Child protection procedure could increase the risk to the children and be unmanageable from a social care point of view.
What we know is that mother is exhibiting signs of heightened anxiety and Child Protection procedures are only going to increase this. Again this will increase the risks for the children.
A strong worry is that health has already done the advising but mum has not listened and continues to take the children to London to seek private consultation…
The level of potential risk, the unknowns and the history of mum's engagement with health leads us to concluded that the potential harm for the children is significant and that child protection procedures would not be a robust enough threshold to work under in order to proceed. By being in care proceedings the court would assist in ensuring that relevant professional assessments were undertaken and that parents understood the seriousness of the concerns."
3.8.4: The immediate risk issue
"86…Health professionals were of the view that [ABC]'s behaviours were so far out of the spectrum of "normal" behaviour that it is not possible to rule out risk of imminent harm to the children as there is uncertainty in how parents will respond once concerns are openly raised…
87…There is uncertainty over how [ABC] will respond when concerns are raised or what else she may do and therefore we cannot assure that the children are not at risk of imminent physical and emotional harm if they currently remain in their parents care".
3.8.5: The agreed next steps
(i) The police update in the meeting notes records the following: "Parents would be arrested and interviewed and we all agreed that this needed to take place when the children were not in parents care. Social care advised that the court documents would be filed with court the week following this meeting and asked the police to co-ordinate with social care, so that any powers used to remove the children did not run out before an order was made to safeguard the children".
(ii) One version of the notes records that the court paperwork was "almost completed"; that an urgent hearing could be requested; and that the police would need to search house to gather evidence. It was anticipated that there would be a further meeting once the timeframe for action was known, which would be a "strategy discussion between Police and Social care looking at practical elements to Intervening whilst protecting the children and potential evidence".
(iii) On 17 May 2017 DS Pope noted her understanding of the meeting's outcome on the police log as being that the arrest of both parents was to "occur on the same day that SC [D1] go to court for the care order". In her witness statement DSI Pope said that the decision reached was that that D1 would obtain an ex parte ICO and that the police would arrest the parents once that was granted.
3.8.6: The level of multiagency agreement to the plan to remove the children
3.9: Liaison between D1 and D2 from 12-23 May 2017
"I just want to be really clear about this, having spoken to Hannah and receiving the below I am a little concerned that the court paperwork has not yet gone in.
It was agreed that the action would be taken W/C 22nd May, this action was the arrest of the parents on the same day that SC took this to court. It was agreed that this need[s] to be done before half term. There is no monitoring of the children during half term and I would be very concerned to leave them without any monitoring. The school is our safety net at this moment in time.
It was agreed at the meeting that this week we would further liaise and agree a date for next week to take the action. This is clearly not going to happen if the court paperwork has not been submitted and is unlikely to be done until tomorrow.
Whilst we can act very quickly if the need arises, the best outcome would be for the planned approach we agreed upon as we need time to arrange to have the required number of officers for the day in question. This is to ensure that we are able to gather best evidence on the day and be able to plan other work commitments around this, something that we are struggling with at the moment.
Can I ask that I am kept up to date with your current position and you express the urgency to your legal department for a date?
I appreciate that you are also very busy, I just feel strongly that we need to stick to the agreement from the strategy meeting to ensure that this goes as smoothly as possible."
"I understand your concern and maybe I was not clear in the logistics of issuing care proceedings. I said that the court paper work would be filed the week beginning 22nd March 2017. This is sent to legal and then legal write the threshold document and make the application. It is up to legal whether threshold is met for an urgent hearing or the standard 14 day. We are on target for filing today and legal are up to date with our positions.
There are some logistical issues with half term coming up and we can ask for a urgent hearing but the argument maybe that the children have been in the home during half term without them being placed at immediate risk. It maybe that it has to be done over the half term but legal will make the final decision.
I know that you have staffing issues to sort and as soon as I have heard from legal I will let you know".
This email reflects a level of misunderstanding between the police and the social workers: it makes clear that the latter did not understand that it had been agreed that the co-ordinated action would take place before the half-term holiday.
"Thanks for your reply, I don't think I was mistaken in the fact that we agreed that the joint action needed to be taken prior to the half term whilst the children were at school. It was clear that any action would be taken whilst the children were at school and NOT over the half term. I do not feel that however many police officers and social workers turning up at the address, arresting parents and removing the children would be in their best interests and I would not feel comfortable doing it in this way. It would be very distressing for the children.
If your legal cannot get in court this week, I will stress again that the action that Police take needs to be the same day you are going in to court. If you go in to court 1st then any evidence is likely to be destroyed. This is documented in the minutes from the last meeting.
Please keep me up to date".
"Just seen this email. I definitely don't want to be going to the house and removing the children, I meant if we had to wait a week to intervene but by the sounds of it we will get into court next week. The hope is for Wednesday to be the day we go to court. The children will be taken from school once we have agreement that you are willing to PPO, to give time to get to court and get the ICO. I will call you at the start of next week".
3.10: The events of Wednesday 24 May 2017
3.10.1: The arrests and interviews of ABC and DEF and the search of their home
3.10.2: The use of s.46 to remove the children
"Reason for believing child was at risk of immediate significant harm…Concerns have been raised by medical professionals that parents are fabricating illness in their two children which is leading to unnecessary medical treatments and appointments. There is policy around fabricated and induced illness to state that the children are at an increased risk at harm when the parents become aware of these concern".
The documentation also noted that: "SC [Social Care] are at court this week seeing an interim care order to take over the PPO".
3.11: Family Court proceedings on 25 and 26 May 2017
3.12: Events after 27 May 2017
4: The legal framework and relevant guidance
4.1: The legal powers to remove children from their parents
4.1.1: Emergency Protection Orders and Police Protection Orders
(i) Separation is only to be contemplated if immediate separation is essential to secure the child's safety: "imminent danger" must be "actually established".
(ii) Both the local authority which seeks and the court which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the court approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.
(iii) Any order must provide for the least interventionist solution consistent with the preservation of the child's immediate safety.
(iv) If the real purpose of the local authority's application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a child assessment order under the CA 1989, s.43.
(v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte application, very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child's immediate safety.
(vi) The evidence in support of the application for an EPO must be "full, detailed, precise, and compelling…[u]nparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning".
(vii) Save in "wholly exceptional cases", parents must be given adequate prior notice of the date, time, and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.
(viii) Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency and even then, it should normally be possible to give some kind of, albeit informal, notice to the parents or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on.
(ix) The evidential burden on the local authority is even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the "fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law".
"(c) Mere lack of information or a need for assessment can never of themselves establish the existence of a genuine emergency sufficient to justify an EPO. The proper course in such a case is to consider application for a Child Assessment Order or issuing s.31 proceedings and seeking the court's directions under s.38(6) for assessment…
(j) Cases of emotional abuse will rarely, if ever, warrant an EPO, let alone an application without notice.
(l) Cases of fabricated or induced illness, where there is no medical evidence of immediate risk of direct physical harm to the child, will rarely warrant an EPO".
(i) Removal under s.44 involves a "more elaborate, sophisticated and complete" process than removal under s.46, involving, for example, the power of the court to give directions regarding contact, examinations and assessments and the applicant being given parental responsibility;
(ii) Parliament had afforded "primacy" to s.44 and intended that, if practicable, the removal of a child should be authorised by a court under that section: this was not surprising given the seriousness of removal, with the role of the court being a "valuable safeguard";
(iii) On that basis, s.46 should be invoked only where it is not practicable to execute an EPO, albeit that in deciding on practicability, the police must always have regard to the paramount need to protect children from significant harm"; and
(iv) If there is no imminent danger the appropriate application is for an ICO and if there is greater urgency the appropriate remedy is an EPO: even in an emergency the local authority should seek a court order as this is a "potent check on the local authority's powers of intervention in emergency".
4.1.2: Interim Care Orders ("ICOs") with removal
"(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference…
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."
4.1.3: Disclosure obligations
"The local authority is in complete charge of the decision to make an application but from that moment on, it becomes subject to the procedural obligations imposed by the Rules and Practice Directions of the Court and the Orders of the allocated Judge. Procedural fairness for parents, for example, in relation to disclosure, notice of decisions made and the reasons for the same, and the obligation to put both sides of the case in statements of evidence including evidence favourable to another party that may be inconsistent with or has the effect of undermining the local authority's case, are all aspects of the objective inquiry mandated by the Act".
4.2: The guidance to professionals in cases of suspected FII
4.2.1: The government guidance
"If at any point there is medical evidence to indicate that the child's life is at risk or there is a likelihood of serious immediate harm, an agency with statutory child protection powers should act quickly to secure the immediate safety of the child. Emergency action might be necessary as soon as a referral is received, or at any point in involvement with the child and their family. Alternatively, the need for emergency action may become apparent only overtime as more is learned about the circumstances of a child or children…The nature of the abuse will be a key determining factor i.e. if it is known a child is being intentionally suffocated or poisoned then immediate action should be taken. If the child is subject to verbal fabrication only, and not the induction of physical signs, it is unlikely it will be necessary to act as quickly to secure the immediate safety of the child." [bold in the original] (paragraph 4.28).
4.2.2: The Royal College of Paediatricians and Child Health ("RCPCH") guidance
"…any concerns are not usually discussed with the family at this stage as there is a risk that the behaviour may escalate and increase harm to the child or could impact on the evidence gathering...
Whilst practitioners should, in general, discuss any concerns with the family and, where possible, seek agreement to making referrals to Children's Social Care, this should only be done where such discussion and agreement-seeking will not place the child at increased likelihood of Significant Harm" (pages 3-4).
"At no time should concerns about the reasons for the child's signs and symptoms be shared with parents if this information would jeopardise the child's safety…
All decisions about what information is shared with parents should be agreed between the Police, Children's Social Care, the consultant paediatrician and the referring practitioner, bearing in mind the safety of the child and the conduct of any Police investigations…
Decisions must be made and recorded about what information will be shared with the parents, by whom and when. The decision should be guided by a clear assessment of the risk to the children as a result of informing the parents of the concerns" (pages 4-6).
4.2.3: National Society for the Prevention of Cruelty to Children ("NSPCC") research
"Although the induction of illness usually carries a greater risk of causing serious physical harm to the child, children can also suffer harm as a result of repeated inappropriate investigations, such as lumbar punctures, which are administered as a result of false accounts of symptoms or fabricated symptoms" (page 8).
"Being honest about suspicions from the start may scare off the parent (making it difficult to gain evidence), attract undue media attention, or worse, can lead to an increase in harmful behaviour in an attempt to be more convincing.
Remember that some parents may be extremely manipulative and convincing. They may be middle class and they will know how to invoke the complaints procedure." (pages 10-11)
"When FII is recognised in a child, this leads to child protection procedures in order to determine whether the abusing parent should continue to care for the child and this may include care proceedings. In most cases, the protection plan or the courts will place the child in the care of the local authority. Abusing parents may or may not have contact depending on individual circumstances…Reunification is not usually an option for parents who continue to deny FII." (page 14)
5: The expert evidence
5.1: The Claimants' expert evidence
5.2: D1's expert evidence
5.2.1: Ms Schofield's evidence
(i) The children were not at immediate risk of harm when at home with ABC and DEF if they were not aware of the professionals' concerns. However, this situation could not remain as it was: all the professionals agreed that some action needed to be taken.
(ii) At the time of the fourth strategy meeting on 12 May 2017, a decision "could" still have been made by the social workers to challenge ABC about the use of oxygen, demand that she cease immediately and arrange a case conference and put both children on child protection plans. Further, the social workers "could" have decided to seek an assessment of the family within the child protection process. However, they concluded that these options were too risky.
(iii) Instead, the social workers decided that the safest way to protect the children was to seek an ICO with removal of the children before approaching the parents with their concerns. As to this decision:
(a) It was based on detailed medical evidence which had been analysed and assessed by medical professionals both before the referral was made and at the later strategy meetings, with the FII diagnosis confirmed and agreed by all relevant medical personnel;
(b) It was an "exceptional" decision based on legal advice and reflecting the "exceptional" and "particular" features of an FII case, which can be different from other abusive situations, namely the recognition that in some cases of FII, once the parents are challenged, the risk to the children may increase;
(c) The social workers could not know what the parents' response would be in this case, but were entitled to rely on the views of the other professionals who did know the family, principally the paediatricians, and they had highlighted concerns regarding ABC's previous disregard of medical advice and failure to be open about the various private doctors she was consulting, which behaviour contributed to the decision to issue proceedings rather than follow the child protection investigation route; and
(d) It was reached after detailed consideration of the various options. Whilst recognising the distress their decision to issue proceedings was likely to cause, all the parties at the 12 May 2017 meeting, including the medical practitioners, agreed that this was the most appropriate response to protect the children; and neither police nor social workers wanted to risk the parents concealing additional evidence once they became aware of the professionals' concerns.
(i) She noted that the police officers did not want the children to continue living with their parents over the half-term break when the school would not be able to monitor their well-being. They appeared to have assessed the risk to the children as being greater than the social workers, who seemed less concerned about the half-term, and to regard the date on which ABC and DEF were made aware of the professionals' concerns as flexible;
(ii) Although the social workers did not appear to share the police officers' sense of urgency and were keen to put their case before the court before taking action, they did not argue against the action the police planned to take, namely, to proceed under s.46 if necessary, before the social workers were in a position to file their application;
(iii) The use of s.46 by the police was not a matter within her expertise. However, the legal principles relevant to EPOs set out in section 4.1.1 above would apply to the use of s.46. The HRA meant that it was always necessary to seek the least restrictive order and that social workers' actions had to be necessary and proportionate. If the social workers had had serious concerns about the action proposed by the police they would have spoken up, but as they were already seeking removal themselves, it was unlikely that they had those concerns.
5.2.2: Submissions on Ms Schofield's evidence and analysis
"The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter" [my emphasis].
6: The negligence claims against D1
6.1: The legal principles
"deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another".
"…when the decisions taken by a local authority in respect of a child in its care are alleged to constitute negligence at common law, the trial judge, bearing in mind the room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority and its social workers and not by the court, must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent".
"The social workers were at all times dealing with a challenging situation which required balanced judgments to be made, not only as to past facts…but as to future courses of action, each of which involved advantages and disadvantages which had to be weighed up, with no certainty of a good outcome whatever they did. The actions required of them in such situations were not obvious…"
6.2: The issues on these claims
6.3: The decision not to inform ABC and DEF of the professionals' concerns prior to removal of the children
Have the Claimants proved that the decision not to alert the parents prior to removal was outside the range of reasonable responses open to a reasonably competent and careful social worker, judged by the Bolam test?
6.4: The removal of the children
Have the Claimants proved that the social workers' conclusion that the risk of harm to GHI and JKL would be immediate when ABC and DEF became aware of the investigation was outside the range of reasonable responses open to a reasonably competent and careful social worker, judged by the Bolam test?
6.5: Alleged failings with respect to disclosure
6.5.1: The Claimants' allegations
6.5.2: Procedural submissions and analysis
6.5.3: Submissions on the merits and analysis
6.6: Overall conclusion on the negligence claim against D1
7: Limitation on the HRA claims
(i) A court should not add to or qualify or put any gloss upon the words "equitable having regard to all the circumstances" when considering the exercise of the discretion under s.7(5)(b).
(ii) The language of s.7(5)(b) has an obvious resonance with the Limitation Act 1980, s.33(1). While it would not be right to incorporate all the circumstances to which the court is enjoined to have regard as set out in s.33(3), which are inclusive and not exclusive of "all the circumstances", it would not make any sense to disregard them as having no relevance to the circumstances which the court should consider in exercising its discretion whether or not to extend time under these provisions of the HRA.
(iii) It is desirable not to list the factors or to indicate which factor may be more important than another. It is for the court to examine, in the circumstances of each case, all the relevant factors and then decide whether it is equitable to provide for a longer period.
(iv) It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account.
(v) An absence of prejudice, so far as s.7(5)(b) is concerned is a highly material factor but is not of itself conclusive in favour of an extension of time being granted.
(vi) It is necessary to consider whether here it would be proportionate to deny the claimant the right to bring an HRA claim.
(vii) The burden is on the claimant to prove that there are circumstances which make it "equitable" why the defendant should not be able to take advantage of the limitation provisions. However, it may be more appropriate to approach the question by an "open ended examination of the factors that weigh on either side of the argument".
(viii) "Equitable" must mean fair to each side.
(ix) While there is a significant public interest in public law claims against public bodies being brought expeditiously, expedition is less obviously necessary in a claim for a declaration in vindication of the claimant's human rights, upon which nothing else depends, or of a claim for damages. These are retrospective remedies, aimed at marking or compensating what has happened in the past.
(i) ABC and DEF took some informal legal advice in March 2017 when they found out about the information sharing between the school and Dr S as a result of JKL's disclosure about the oxygen tank. This happened to be from the solicitor who would later represent the Claimants in this claim. However, he was not formally instructed at that point.
(ii) The Claimants were all represented by specialist solicitors and counsel during the Family Court proceedings. When the HRA limitation period expired, those proceedings were still ongoing: they did not formally end until the order dated 28 June 2018.
(iii) Once those proceedings had concluded, DEF volunteered in his evidence at trial that he was advised by his KC to take the matter further. However, he said that they did not take legal advice at that point because "we did not have the headspace or mental capacity to do that…I could not even answer my phone…we just wanted to move on; our lives had been obliterated". In a similar vein, ABC said in her witness statement that she and DEF were "not really in any fit state" to do very much at the conclusion of the Family Court proceedings. In her oral evidence she said, "when you have lived that experience you are just happy to have got the kids back and can live family life again".
(iv) The evidence from their family and friends gives an insight into this period of time: for example, one said that in the immediate aftermath of the family being reunited they "needed to nest and stay together".
(v) ABC and DEF both accepted they had not complained to the Independent Office for Police Conduct.
(vi) ABC's evidence was that she was advised to submit various Subject Access Requests and she did so in late 2018 (albeit that Mr Basu put to her that D2 had not received one). However, she said the paperwork took a long time to come through and when it did, she found it difficult to read. She did not think DEF had ever done so. She said in her oral evidence "I struggled to look through a lot of the paperwork…I thought I would have to re-live it all".
(vii) She described how, as time went on, they considered taking legal advice but it was very difficult for her and DEF to decide to see a solicitor, as that meant they would have to "dig up" what had happened. She found even handing over the paperwork to an outsider "extremely distressing". She said that even now reading the paperwork triggers the memories of what happened and of guilt and inadequacy.
(viii) It appears they instructed their current solicitors at some point shortly before April 2020, when the first letter of instruction was sent to Mr Barratt.
8: The Article 8 claims against D1 and D2
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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."
8.1: The relevant Article 8 case-law
8.1.1: General principles
8.1.2: The role of the court
"…there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measures on the parents and the child, as well as the possible alternatives to taking the child into public care, was carried out prior to implementation of a care measure": P, C & S at .
"Although this passage is concerned with the margin of appreciation that should be, it seems to me that there is much here that has application when the national court is reviewing the decision of an authority to seek to remove a child from those who have custody of him or her. An authority such as the Council in the present case is better equipped than the court to judge how urgent a situation is, and whether in all the circumstances removal of the child is necessary. In my view, therefore…[social workers]…should be allowed some latitude by the court when reviewing their decisions in these difficult cases where they have reasonable cause to believe that a child is at risk of significant harm. Of course, the court should never lose sight of the fact that the removal of children from those who have custody of them is an extreme form of interference with family life and calls for compelling justification."
8.1.3: Strasbourg cases involving suspected FII
8.2: Overview of the issues on the Article 8 claims
8.3: The decision not to inform ABC and DEF of the professionals' concerns prior to removal of the children
Have the Defendants proved that it was necessary, on the basis of their genuine and reasonably held beliefs, for the protection of the rights and freedoms of the children and/or of their health and/or for the prevention of crime, for the parents not to be told about concerns prior to the removal of the children and was that the least intrusive measure which could have been used without unacceptably compromising the achievement of that objective?
8.3.1: Have the Defendants proved that the decision not to inform ABC and DEF of the concerns prior to removal was necessary on the basis of Article 8(2) interests?
8.3.2: Have the Defendants proved that the professionals genuinely believed the decision was necessary on the basis of those interests?
8.3.3: Have the Defendants proved that the professionals' beliefs were reasonably held and that the decision was the least intrusive measure which could have been used without unacceptably compromising the achievement of their objectives?
(i): Training and expertise
(ii) The need for assessment
(iii): The balance of harm assessment
(iv): The guidance
(v): The overall multidisciplinary risk assessment underpinning the decision
8.4: The removal of the children
8.4.1: DS Pope's belief
Has D2 proved that DS Pope believed, and that she had reasonable cause for believing, that the children were likely to suffer imminent and significant harm if they were not removed to suitable accommodation and kept there when she invoked the CA, s.46 power?
8.4.2: The removal of the children under s.46 by D2
Has D2 proved that it was necessary, for the protection of the rights and freedoms of the children and/or of their health and/or for the prevention of crime, for them to be removed by DS Pope on 24 May 2017 into local authority foster care and was that the least intrusive measure which could have been used without unacceptably compromising the achievement of that objective?
(i) It was "not practicable" for an ex parte ICO, or presumably EPO, application to be made that day. This was apparently due to a combination of D1's paperwork not being quite ready and the fact that D1 did not receive notification of the arrests until the early afternoon. As to the latter issue, Ms Shirtcliffe's evidence was that she could not remember an occasion in their locality in her 14 years of experience when social workers had received information in the morning and been able to obtain a hearing in the afternoon.
(ii) Ms Schofield agreed that it was not possible to assess family members as potential carers in advance of the removal. This was because D1 had no knowledge of their relationship with the parents, nor their views on their behaviour, such that it was unclear whether they would inform the parents of the concerns and thereby put the children at risk.
(iii) Similarly, as DSI Pope explained, there are occasions after the arrest of parents of young children where it may be appropriate to ask other family members to pick the children up from school and to take them into their care. However, this was not one of those cases. She said that it had been reported as part of the information sharing process that ABC had shown signs herself of FII and therefore until D1 could undertake an assessment of the wider family, she concluded that it would not be appropriate from a safeguarding perspective to place GHI and JKL with family members.
(iv) The option proposed by Mr Willems of voluntary accommodation under the CA 1989, s.20 was not explored at any length during the trial but would surely have involved the co-operation of ABC and DEF, and the social workers had already justifiably ruled out any such liaison before seeking removal through an ICO.
(v) The child protection route had been justifiably ruled out at the 12 May 2017 meeting.
On that basis, DS Pope had no realistic option that could effectively meet the objective of protecting the children other than the use of s.46.
(i) This case clearly has some similarities with Re X as both involve concern by the authorities about the parental response to care proceedings. However there are important differences between the cases: in Re X (i) the mother had expressly sought the help of social services with her health concerns for her child; (ii) the suspicion of FII came from a social worker rather than a medical professional; (iii) prior to the making of the EPO of which McFarlane J was critical, the agreed plan had been "low level intervention by way of assessment and counselling; and (iv) the social workers had disregarded legal advice. None of those features is present here.
(ii) Further, in Re X, the only evidence which suggested imminent danger to the child was a concern that the father may self-harm if care proceedings were commenced, which was "embellished" by the social workers to a concern that he might also harm the child. Matters were different here: as explained in section 8.3 above, there were a series of factors, and pertinent guidance, which led the professionals to reach the justified conclusion that the children were in imminent danger once the parents were aware of the professionals' concerns.
(iii) As noted at  above, McFarlane J's observation in Re X that an EPO (and by implication the use of s.46) will rarely be warranted in suspected FII cases where there is no medical evidence of immediate risk of direct physical harm to the child has been overtaken by cases such as Re L recognising the significance of emotional harm. In any event, as noted at  above, the risks to GHI and JKL were not limited to the risks of emotional harm
(iv) A also provides some support for the use of s.46 in this case. There, the use of s.46 was found by the trial judge and the Court of Appeal to be justified on the basis of medical evidence that the risk to the children could not be said to be "anywhere near 50%" but was neither "zero or sufficiently near zero for it to be discounted". The Court of Appeal also focused on whether the authorities had been entitled to take a particular course of action rather than whether it was the ideal one. The Court's view at - that things might have been done "better" through, perhaps, more communication with the parent, did not merit a finding of a breach of Article 8. It is also notable that in this case the duration of police protection was, as in A, just 2 days.
(v) Further support for the use of s.46 here can be drawn from K v CPS  EWHC 1606 (Admin). At  and  Bean J (as he then was), with whom Beatson LJ agreed, held that while seeking an EPO is clearly preferable where practicable, the police must always have regard to the paramount need to protect children from significant harm; and the police are not debarred from using s.46 power at a stage where the child is believed to be at imminent risk of significant harm and it is too late to make an application for an EPO.
8.4.3: The actions of D1 with respect to removal
Has D1 proved that the social workers genuinely and reasonably believed it was necessary, for the protection of the rights and freedoms of the children and/or of their health and/or for the prevention of crime, for the children to be removed ex parte; and on the basis of that belief, that such removal was the least intrusive measure available without unacceptably compromising the achievement of that objective, such that it was not incumbent on D1 to seek to intervene in respect of the police's use of their s.46 powers either before or following the planned DS search of the home and the arrest of the parents?
8.4.4: Overall conclusion on the removal issue
8.5: Alleged failings with respect to disclosure by D1
8.6: The application of the Lumba principle to the Article 8 claims relating to removal
8.6.1: The legal principles
"104. The test therefore is not what would, in fact, have happened had [the officer not arrested the claimant] but what would have happened had it been appreciated what the law required. To Stuart-Smith J this appeared circular: to assume lawfulness was to assume what was sought to be proved. However, the counterfactual scenario envisaged by Lord Dyson and the accompanying majority in Lumba did not require the court to assume the lawfulness of the substantive detention. It required the court to assume the lawfulness of the procedure whereby the detention was effected. Lying behind the decision in Lumba therefore is the principle that although procedural failings are lamentable and render detention unlawful, they do not, of themselves, merit substantial damages…
108. It is thus clear that substantial damages will not be awarded if, had the defendant acted lawfully, the claimant would have been detained in any case, on the basis that no harm had ultimately been caused. That is not to encourage sloppy practice but, rather, to reflect actual loss. It also permits the distinction to be drawn between those who would have suffered the detriment in any event (in this case, false imprisonment) and those who would not".
8.6.2: The Defendants' positions
8.6.3: Submissions and analysis
"I think they would have done because of the nature of FII which makes this very different to the types of cases the courts are used to hearing. CSC would have been stressing how concerned they would be for the potential for increased risk to the children once the parents were aware. This was the best information they had read in the guidance" [my emphasis].
He put the proposition to her again; and again she declined to accept it.
8.7: Overall conclusion on the Article 8 claims
9: The negligence claim against D2
10: The false imprisonment and Article 5 claims against D2
10.1: The legal framework
"If the custody officer has reasonable grounds for believing that the person's detention without being charged is necessary to secure or preserve evidence relating to an offence for which the person is under arrest or to obtain such evidence by questioning the person, he may authorise the person arrested to be kept in police detention."
"Right to liberty and security of person
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so".
"…wilfully assaults, ill-treats (whether physically or otherwise), neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature)".
10.2: The issues on these claims
Has D2 proved that each arresting officer believed that arresting the parent whom she arrested was necessary to allow the prompt and effective investigation of the offence which she reasonably suspected and/or of his/her conduct and/or to protect their children from them in all the circumstances, when such arrest led to the removal of the children? ("the necessity (subjective belief) issue");
Has D2 proved that each arresting officer's belief in the necessity for arrest was held on reasonable grounds, when such arrest led to the removal of the children? ("the necessity (reasonable grounds) issue");
Has D2 proved that the custody officer believed that each of the parents' detention without being charged was necessary to secure or preserve evidence relating to an offence for which she/he was under arrest and/or to obtain such evidence by questioning her/him and that he had reasonable grounds for that belief? ("the custody officer issue"); and
Has D2 proved that the deprivation of the parents' liberty by D2 was justified for the purposes of the common law tort of false imprisonment, and Article 5, in all the circumstances? ("the overall justification/Article 5 issue").
10.3: The necessity (subjective belief) issue
10.4: The necessity (reasonable grounds) issue
10.4.1: The prompt and effective investigation reason under s.24(5)(e)
10.4.2: The protection of children reason under s.24(5)(d)
10.5: The custody officer issue
10.6: The overall justification/Article 5 issue
11: The Children Act 2004, s.11 and Article 3
11.1: The Children Act 2004, s.11
11.2: Article 3
(i) Permitted GHI and JKL to pursue their negligence claim in relation to non-disclosure of the 3 May 2017 emails from the medical professionals; and all four Claimants to pursue their Article 8 claims on this basis, notwithstanding the omission of this from the parties' agreed list of issues (section 6.5.2 above); and
(ii) Extended time for all four Claimants to bring their Article 8 claims and for ABC and DEF to bring their Article 5 claims under the HRA, s.7(5)(b) (section 7).
(i) Dismissed GHI and JKL's negligence claims against D1 relating to the decision not to inform ABC and DEF of the professionals' concerns prior to removal of the children, their removal and the non-disclosure of the 3 May 2017 emails on the basis that (a) the Bolam test applied; (b) there was no expert evidence in support of the allegations of breach of duty; and (c) the Lumba principle applies (sections 6.1, 6.3-6.4 and 6.5.3);
(ii) Dismissed all four Claimants' Article 8 claims on the basis that (a) the decisions not to inform ABC and DEF of the professionals' concerns prior to removal of the children and to remove the children were necessary and the least intrusive measures that could have been adopted (sections 8.3-8.4); and (b) the delay in disclosing the 3 May 217 emails until October 2017 was not a breach of Article 8 (section 8.5);
(iii) Concluded that in any event the Lumba principle applies to the removal of the children: if the law required that a process other than s.46 be used, the children would have been removed in any event, by the Family Court making an ex parte ICO with removal, at or around the same time as the use of s.46 (section 8.6);
(iv) Dismissed GHI and JKL's negligence claims against D2 relating to the decision not to inform ABC and DEF of the professionals' concerns prior to removal of the children and their removal as I am not satisfied that there was a breach of any duty of care and due to the operation of the Lumba principle (section 9);
(v) Dismissed ABC and DEF's false imprisonment claims against D2 on the basis that (a) the arresting officers subjectively believed that their arrests were necessary for at least one of the reasons given in PACE, s.24(5) and their beliefs in this regard were reasonable; and (b) the custody officer subjectively believed that their detention without being charged was necessary under PACE, s.37(3) and he had reasonable grounds for that belief (sections 10.2-10.5);
(vi) Dismissed ABC and DEF's Article 5 claims for the same reasons (section 10.6);
(vii) Concluded that the officers' actions in using s.46 and arresting ABC and DEF were in accordance with, and arguably necessitated by, their statutory duty to safeguard and promote the welfare of GHI and JKL under the Children Act 2004, s.11 (section 11.1); and
(viii) Concluded that it is not necessary for me to determine any of the Article 3 issues in light of my other findings (section 11.2).