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Appeal judges reject mother's damages claim after baby taken into care

6 July 2010

Appeal judges have unanimously rejected a mother's claim for damages under the Human Rights Act after her baby was taken into care.

The court heard that the baby boy, aged just over two months, was admitted to Eastbourne general hospital after the mother said he had stopped breathing.

“Not only had no-one else seen any such incident but no explanation for it could be found,” Mr Justice Hedley said.

“The consultant was anxious lest he had encountered an example of fictitious illness and, as was his duty, he notified social services; under the procedures known generally as Working Together, the police were also informed.”

He was later taken into care on an emergency basis by Sussex Police under section 46 of the Children Act 1989.

Lord Justice Jackson said the case hardly represented a “wise use of public funds”.

He went on: “This is not a claim about the welfare of the child. All three parties are publicly funded. The costs to the public purse (approximately £80,000) exceed by an order of magnitude the modest damages which were in issue.”

Giving the leading judgment in A v East Sussex County Council [2010] EWCA Civ 743, Mr Justice Hedley said: “It is wholly unsurprising in those circumstances that the appellant should feel aggrieved at having been under suspicion of fictitious illness, at having her child removed from her for two days and at having to attend a mother-and-baby unit.

“Nor indeed is it possible for anyone to feel other than sympathy for her plight. On the other hand child protection is just that. It is protection from the consequences of perceived risk.

“There will be cases, as here, where either the risk was incorrectly perceived or did not eventuate. That of itself does not mean that protective measures were wrongly taken.”

Mr Justice Hedley said that even in an emergency, it was desirable for the authorities to work in partnership with parents.

“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.”

Hedley said removal to a known destination, such as a relative, was preferable to removal to a stranger, but either way the parent should, in the absence of good reason, be allowed to pass information to the carer.

Mr Justice Hedley said more discussion between social worker and mother, involving her solicitor, may also have helped resolve the situation.

“Social workers in these situations are in a very difficult place,” he said. “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.”

Hedley J dismissed the mother’s appeal. Lord Justices Jackson and Carnwarth agreed.

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