COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
Her Honour Judge Finnerty
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE WILSON
| RE S (A CHILD)
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Sarah Singleton QC and Vicki James (instructed by Switalskis) for the Respondent
Guy Swiffen (instructed by Stuart Gordon, Solicitors and Advocates) appeared for the Child's Guardian
Hearing dates: 2 November 2010
Crown Copyright ©
Sir Nicholas Wall P:
Introduction (2) HRA applications in care proceedings
….The removal of a child at an interim stage is a draconian act which can only be justified where on a proper application of the welfare checklist a child's safety requires such removal pending a final determination of the application for a care order.
"whether the continued removal of (the child) from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care."
Introduction (3) Events since the hearing before the judge
"On 9 November 2010, the family's social worker attended at the family home to take (the mother) for a drugs test. He discovered that the family had moved out of the address and another family were moving in. The mother and father did not answer their phone, and did not respond to messages left. As a result the child was reported missing to the Police, who located her at another address in the …. area with her mother. The child was removed and is currently in local authority foster care"
(1) At 15.00 on 16 November 2009 a prison officer called JH wrote : "On 10 November 2009 (S) was observed laid in her pram with the bottle of milk propped in her mouth with the aid of a blanket. (The mother) was in the kitchen washing up. (S) was seen to start being sick and because she was laid on her back could not remove the sick from her mouth. I immediately picked up (S) and laid her in my arms on her tummy allowing her to continue being sick without choking. Potentially this was a very dangerous situation and had I not been walking past the pram could have resulted in (S) choking.
I spoke to (the mother) who saw me remove (S) from her pram and explained how dangerous this was and she said she would not do it again. Since this incident (the mother) has been warned about this on several occasions by myself SS and PT (Nursery Nurses) and CS [the Health Visitor]. Obviously, she does not see the danger and continues to carry out this very dangerous act despite all the warnings." (Emphases supplied).
(2) At 17.50 on the following day, 17 November 2009 another officer, HS wrote: - "At approx 17.10 hours (S) was in her pram with a baby bottle 'propped' in her mouth. (The mother) was sat on the sofa at the other end of the room and could not observe (S) from where she was. (The mother) has been told on numerous occasions by nursery staff and officers about the dangers of choking." (Emphasis supplied)
(3) At 13.00 hours on 18 November 2009, Officer JH wrote: "At approximately 12.45 hours on 18 November 2009 I looked into (S's) pram and once again (the mother) had propped the bottle on a blanket and was feeding (S) in this way. (S) was not even in sight of (the mother). (The mother) has now taken to turning the pram in order to prevent staff from seeing this. Despite numerous warnings (the mother) continues to carry out this very dangerous and potentially fatal act. (Emphasis supplied)
The letters from the local authority and the guardian
"Due to recent information given to the local authority by (the prison) the (local authority) are in favour of separating (S) from (the mother). (PH) has informed (EB) social worker that they are unable to supervise and monitor (the mother's) care of (S) & informed them that (the mother) will have sole care of (S) for long periods of time extending to hours. In light of this (the local authority) have requested that staff at (the prison) to call the Police or request that (S) is taken into police protection. The matter is before Leeds FPC on 20 / 11 / 09 where (the mother) will have the opportunity to contest the making of an ICO (Interim care order)."
The hearing before the justices
"We have heard evidence from (EB) who expressed serious concerns regarding information received from the prison that (the mother) was prop feeding (S) and was leaving her unattended. This has occurred on more than one occasion despite warnings by staff. It has been observed that (the mother) is now turning the pram away to prevent staff from observing what is going on. Following a meeting with the Governor about how this risk could be managed, it was explained to the social worker that the prison were unable to provide additional support and supervision to manage this risk. This would mean that both mother and baby would be unsupervised for long periods of time, particularly at night, including feeding time."
The evidence heard by the judge
"Social services were gravely concerned when I informed them on 18 November and they contacted me to say that they'd sought legal advice and based on the fact that they were already in court on the following day for an interim care order proceedings they said that they at that point would take no action given that it was so late on that day and they were already in court the next day, but as the interim care order proceedings on 19 November were adjourned they came in to see me at the prison on that day and I also received a fax from the children's guardian on the same day both asking me to safeguard and guarantee (S's) safety overnight, which was something I told them I couldn't do based on the staffing levels of our mother and baby unit, and at that point we contacted _____ police who came in to action a police protection order. "
"We were becoming increasingly concerned abut (the mother's) care for (S) on the unit. If the interim care order does not go ahead and (the mother's) behaviour continues in this vein then we may be forced to consider separation at some point anyway, but I will await the outcome of the hearing."
"Judge: So from your perspective you were waiting for the court to make a decision?"
PH; … because of the rules around mother and baby units, had we made a decision to separate (the mother) from (S) it would've been (a) quite a long winded process, but (b) it would've been based on (the mother's) as well as the relationship between the mother and the child. But obviously the decision to grant (the mother) a place on the unit had been supported by social services, so obviously we were involving them in this process…
Judge; So the information that was being fed though to you from … the prison, the nursery workers and the officers in relation to the prop feeding was not as extreme as the reaction of social services?
PH; That is correct, and it was based on that information that, although we were alarmed by the behaviour and concerned, and as I've said there, if it continued and we weren't able to stop it, then we would be concerned for (S's) welfare and therefore we might have gone down that route. It wasn't something that in our mind caused us to raise in terms of immediate removal.
"Q. So I assume that the person in charge overnight does regular checks, to check everything is…..?
A: ……there is nothing to state that they have to observe the prisoners at any given point during the night. It's considered good practice, but there's nothing to say that they have to do that. It's quite normal for a prisoner in any unit, unless they were on one of these ACCT documents [that is potential suicide or self-harm] to be unobserved throughout the complete overnight period."
"Q. You were not at that stage saying we must find out whether you can look after this child properly overnight, were you?
A: Well, we were saying that. That was why we went to the prison and that was very much also asked of us by the guardian who was very, very anxious about (S's) welfare overnight. So it was not just social care. We conferred with the guardian. She felt the same. We went. We wanted (S) to remain in (the mother's) care overnight. Unfortunately, the information we received was that they couldn't safeguard her, or they couldn't guarantee that she would be safeguarded and therefore we felt that the best interests of (S) would be to be removed.
The judge then intervenes:
Q. Where is the analysis of risk?
A. Again, this is a management decision and I think that a manager would have to be answerable to that. Prop feeding…… you know, the wording on the referrals was that it was a potentially life threatening thing to do.
Q. That was from a prison officer. Those were her words. A prison officer, not a nursery nurse, not anyone trained in child protection. A lay person. The phrase of a lay person was adopted to remove a baby from a mother without any planning whatsoever. Now, as a social worker, how would you assess that when one looks at the welfare of a child?
A. I have to be very honest here that I feel that the prop feeding was very serious and while others may not agree with me, I think the fact that (the mother) had been asked [not?] to do it and had continued to do it quite indicative really of the way that (the mother) has behaved in the past historically with her other children.
Q. Lack of planning?
A. I don't feel that this was a lack of planning. I feel that it was responding to a potentially crisis situation and ensuring her well being overnight."
"I don't think I have, no. I wouldn't want to think that (S) would have been at risk of choking. She may not have choked, but that's because there was somebody to intervene and that may not've been the case overnight and she may well have choked and I would not like to have that on my conscience or to think that I could've taken steps to safeguard a baby and didn't. I do feel she was at risk and I do feel she was at risk of significant harm. So, no, I don't feel it's blown out of proportion.
Once again, the judge intervenes.
Q; That is not, in fact, the basis for a police protection order, risk. So that was your position that you felt she was at risk?
A; No, I think she had already suffered significant harm by the very fact that she was born addicted and has already suffered significant harm being prop fed."
The grounds of appeal
(1) The Key Social Worker and her Team Manager caused (S) to be removed from her mother because the prison where (S) and her mother were residing on a Mother & Baby Unit could not guarantee "24 hour supervision".
Paragraphs 26, 29 and 30 of the judgment;
(2) (S) was never put at any distress or discomfort or risk by the incidents of prop feeding" save for "the occasion on 10 November".
Paragraph 31 of the judgment;
(3) The Local Authority should have balanced the risks identified against the risk of removing this tiny baby from her primary carer.
Paragraph 32 of the judgment;
(4) I am not satisfied on the evidence that the risks identified by the Local Authority were of such gravity as to justify the immediate removal of the child.
Paragraph 32 of the judgment;
(5) I am satisfied and find that those actions [of the Local Authority] effectively usurped the authority of the Court.
Paragraph 33 of the judgment.
There was a sixth ground of appeal on which we did not hear argument and which I
will discuss when I have dealt with grounds (1) to (5)
The case for the local authority
"(1) The Key Social Worker and her Team Manager caused (S) to be removed from her mother because the prison where (S) and her mother were residing on a Mother & Baby Unit could not guarantee "24 hour supervision".
(2) S was never put at any distress or discomfort or risk by the incidents of prop feeding" save for "the occasion on 10th November".
(3) the Local Authority should have balanced the risks identified against the risk of removing this tiny baby from her primary carer
"I am not satisfied on the evidence that the risks identified by the Local Authority were of such gravity as to justify the immediate removal of the child."
"I am satisfied and find that those actions [of the Local Authority] effectively usurped the authority of the Court."
The case for the mother
The case for the father and for the guardian
"I yield to nobody in my appreciation of the difficult tasks which social workers are called upon to undertake and the pressures under which they are constrained to work. I am very conscious of the criticism that social workers are damned if they do and damned if they do not. At the same time, their duties under Parts III and IV of the Children Act in care proceedings are plain. Their aim should be to unite families rather than to separate them."
"No, we went to the prison really to see if we could safeguard her and we went very much with the view that we wanted S to stay with (the mother). That was part of the reason that we wrote that letter to ask for additional support to be put in place. Unfortunately, because they couldn't guarantee her safety we were very concerned and, again, a management decision was made by two senior managers that it would have to be that she'd be removed to ensure that she wasn't prop fed overnight when there was limited supervision."
The additional ground in the Grounds of Appeal
"What is being suggested by the local authority is that this matter is stood down part heard today, that ….. before the matter is next to come back on (11) December, that we put a plan together with regard to an evaluation of mother's understanding of the danger of prop feeding and proper methods of feeding……. It is possible, if we come up with a plan for that evaluation that it may be that the evaluation of the mother's care, of feeding of (S) could take place during the day at maybe (the prison). I do not know, we would have to make enquiries with (the prison). But if that took place during the day then placement with parent regulations would not have to be signed off. "
"In relation to, bearing in mind your honour's comments, what they could accommodate eventually to get to placing (S) in a signed off placement with parent regulations, which is their problem." (Emphasis supplied)
Lady Justice Arden
Lord Justice Wilson