Removal of baby from mother without court order not breach of human rights

8 July 2010 by

A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment

The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.

Elizabeth-Anne Gumbel QC, who appeared in the case for the Appellant, analyses the judgment

This case involved a claim under the Human Rights Act 1998 for damages for breach of Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.

Social services, rather than trying to arrange an immediate court hearing, arranged for the police to apply for a police protection order  under Section 46 of the Children Act 1989 and remove the child from hospital without a court order.

When the matter came before the court two days later agreement was reached that the mother and her baby would be supervised in a placement. The placement then confirmed that there were no concerns about the mother, and that she had cared entirely appropriately for her baby since this incident.

The issue before the court was essentially whether the local authority and the police by arranging the removal of the baby from her mother without a court order acted in breach of Article 8. The County court Judge held they did not as it was not practical for the local authority to seek a Court Order on 29 December.

The case was listed for oral argument on permission to appeal  by Lord Justice Wall who stated:

“….the case raises an important point of principle or practice namely the correct course of action for a local authority/police force to take when a consultant advises that a child should not be discharged home unsupervised to a parent or other carer.”

The full hearing came before Lord Justice Carnwath, Lord Justice Jackson and Mr Justice Hedley. The Court granted permission to appeal but dismissed the appeal. The main judgment was given by Mr Justice Hedley who expressed considerable sympathy with the position of the mother and gave guidance as to how in future such a situation could be better managed. He described the difficult situation that arose as follows:

It is wholly unsurprising in those circumstances that the appellant should feel aggrieved at having been under suspicion of factitious 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. It merely illustrates the price that sometimes has to be paid for having a child protection system and it is unfortunate that it was exacted from this appellant and her son.”

In setting out guidance for the future Mr Justice Hedley stated:

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.

23. 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.

24. In the context of this case, and assuming that it was practicable, more discussion between social worker and mother, involving her solicitor, may have led to some resolution. Even where the local authority decide to seek or exercise compulsive powers, it would have been helpful to have explored whether, pending an inter partes hearing, B could have remained in hospital. None of this is intended to cast doubt on the propriety of the learned judge’s conclusions but only to suggest ways in which a job lawfully done might have been better done. The merits of such an approach are not only to cause the least disruption to the child and the least distress to the parent but to mitigate the inevitable hurt where, as here, it all turns out to have been probably unnecessary.”

The Judgment, whilst dismissing the appeal, went some way to explain how this situation could have been better dealt with and a less heavy-handed approach have been more appropriate in all the circumstances.

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