Update | Children: removal from care

In Re CA [2012] EWHC 2190 (Fam) Judge Hedley considered a free-standing human rights claim under s.7 HRA 1998 arising from public law CA 1989 proceedings for care and placement orders. Prior to the child's (C) birth, the local authority (LA) was clear that its plan for C was to remove her from the mother (M) before M's discharge from hospital following birth. M knew of that plan and although did not consent to it, submitted to it. M faced difficult circumstances as she had to decide not only whether she would consent to C being accommodated by the LA under s.20 CA 1989 but she too faced decisions about C needing life-sustaining surgery and whether she (M) would accept pain relief which included morphine.

The hospital staff were concerned with M's condition in the context of her giving s.20 consent and voiced those to the social worker. There were a couple of attempts by the social worker to speak to M about s.20. It was in the course of the latter that M agreed to C's accommodation by the LA after encouragement by the social worker, M's partner and a friend. The HRA claim was conceded by the LA in that s.20 consent should not have been sought on that day and the removal of C was not a proportionate response to the risks which existed at the time. The welfare issues also were determined easily. Hedley J's judgment is mainly concerned with the use of s.20 agreement starting at [25]. ?The key points are:

? Section 20 is contained in Part III of the CA 1989 which is about LA support for children and families; the emphasis being partnership working and there being 'no compulsory curtailment of parental responsibility' [25].

? For a s.20 agreement to be lawful, the parent from whom agreement is sought must have the requisite capacity to make the agreement: all consents under s.20 must be considered in the light of s.1-3 of the Mental Capacity Act 2005 [27]. In my view these provisions must be read in full to follow what one is expected to do in order to establish a lack of capacity. One hopes that child protection social workers are trained in how to reach a professional view about capacity of parents.

? Even where a parent has capacity, consent must be 'properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained'. This must be implicit for there to be no foul of Articles 6 and 8 ECHR [28].

? Where the LA honestly believes that there are reasonable grounds for separation, removal can be affected in four ways, using: s.20, emergency protection orders (EPOs), police protection (PP) or interim care orders (ICOs) [30]. Court orders rank higher than administrative action so EPOs are preferred to PP.

? Although not a feature of this case, Hedley J reminds us that agreement should not be sought to do something which would not be authorised by an order solely because it is known, believed or suspected that no such authorisation would be given - that would breach all requirements of good faith and fairness [35].

The key aspects of the MCA 2005 ?test are:

(a) incapacity must result from impairment of, or disturbance of the mind/brain;

(b) capacity is issue and situation specific so a person may have capacity to make one decision and not another and a person could be able to make a decision at one point in time but then not be able to make the same decision at another; and

(c) a person is presumed to have capacity unless it is established that s/he lacks it.

In this case it does not follow that because M had made decisions about pain relief and surgery, she had capacity to decide about removal. Consent must be properly informed and here M was not told that her continued refusal to consent would result in C staying in hospital for another day or two. Also M was led to believe that the removal was temporary which was not the complete picture as it was likely that the LA would oppose any return of C to M.

Hedley J held that the provision of ?such information was essential for the consent to be fully informed. Willingness to consent cannot be inferred from silence, submission or acquiescence: it is a positive stance on the part of the parent.

Towards the end of his judgement on this 'difficult and highly emotive area of family law and practice' Hedley J outlines 10 points [46] which a social worker may wish to consider when approaching a parent with regard to a possible s.20 arrangement. For lawyers advising LAs, they will need to ensure that child protection social workers charged with the responsibility of seeking consent of parents to s.20 understand the various factors which play a part in the process. Likewise lawyers for parents must note the 10 points not only to give advice as to whether a s.20 agreement (already entered into) is lawful but also when advising pre-birth: to possibly make representations to the LA that in fact a s.20 agreement may not be appropriate, for example: the parent does not have capacity (although of course that is an issue and situation specific question); there is a question as to whether it is necessary for the safety of the child to be removed at that particular time [46(viii)(c)] noting that the LA must satisfy itself that both 'the giving of such consent and the subsequent removal is both fair and proportionate' [46(vii)].

Statutory orphans

Once the care court has made its final orders in respect of children to either enable the mission to find a family by way of adoption or to remain in long-term foster care, it relinquishes control to the LA. Seldom is the court appraised of what then happens to the children. In the statutory orphan's case, A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) Mr Justice Peter Jackson QC dealt with a horrific account of two brothers' career in care.

The boys had been freed for adoption as infants. They remained under those orders for 11 years going from foster placement to foster placement. Jackson J described their experiences in detail in part II of the judgment. He made declarations that their rights under Articles 8,6 and 3 ECHR were breached. The LA and the boy's independent reviewing office (IRO) accepted that they were responsible for those breaches. The remedy will lay in damages which will be determined at a future date by the QBD.

The problem for the boys was that no adoptive family was found. That of itself is not exceptional but what is astounding is that three years after the making of the freeing order, the LA, having decided that adoption was not achievable did not apply for revocation of the freeing orders. In the seven years from having made its decision on adoption being unsuitable, there were 37 looked-after child reviews where on each occasion it was recorded that the LA was going to apply (or, incorrectly, had applied) for revocation but no such application was ever made.

This case is mentioned here because of the judgment's careful consideration of the IRO system and in this case, how that system failed the boys. It is worth reading in full, starting at [168]. The IRO is to be an independent person responsible for reviewing and monitoring the looked-after child's care plan. S/he effectively takes over in some senses from the court and the children's guardian who, until final orders are made in the care proceedings, are the statutory creatures independently undertaking that function. The significance of that role cannot be underestimated and should not be undermined; a vast number of children will remain in care until their majority. They may naturally come into conflict with the LA (the corporate parent) from time to time.

The LA has various interests and considerations to contend with in addition to the welfare of its looked-after children. When elements of the child's care plan need to be revised, actioned or challenged, the IRO must be fully engaged and focused to help the child achieve these things. The child may not realise himself that something requires attention from the LA. The IRO is well positioned (indeed it was always so intended) to identify and move such ?matters forward.

Bundles of joy

The bundle is not a children law solicitor's friend: it sometimes gets large in size/number and requires a lot of updating. It must contain an index and be accompanied by the practice direction documents.

In short, the bundle is a demanding beast. Judges, on the other hand, love the bundle but they don't favour lazy ones: only the best prepared and updated bundles can expect to receive a warm response from ?a judge. In B v B [2012] EWHC 1924 (Fam), Judge Theis did not get on with the bundle and made her feelings very clear. The ?case concerned matters of the children's habitual residence and which court should retain jurisdiction.

It is the bundle perspective which is considered here. In this case the bundle was lodged late. It contained no updating information and it was missing the last order and updating skeleton arguments. It was not clear from the bundle what the hearing was listed for.

On the morning of the hearing, the judge's clerk made enquiries and at that point she was given two position statements; one had a 46-page attachment with various authorities. Those position statements were in fact copies of the ones prepared for the previous hearing and had not been updated or revised. Theis J stated that 'this judgment is another wake-up call to the profession to comply with the practice direction because, as Munby J observed next time a defaulter may not be so lucky'. [29]

For all family lawyers, we have to consider the new landscape which awaits us and what will inevitably present a more robust approach to case management non-compliance