England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL) DIVISION
ON APPEAL FROM CENTRAL LONDON FAMILY COURT
(HHJ OLIVER)

		The Royal Courts of Justice Strand, London WC2A 2LL
		8 August 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Lady Justice King: :

1. This is an appeal against an order made by HHJ Oliver on 7 March 2018. By his order, the judge declined to direct the local authority to return a child, "S" to the care of the appellant mother ("the mother") upon his anticipated release from hospital where he was being treated for meningitis.
2. The issue before the court is whether the judge:

i) had jurisdiction to make the order sought and;

ii) was in any event wrong in his approach to the application. In particular, should the judge have referred to and applied the protocol in Re: DE (Child) under a Care Order; Injunction under Human Rights Act 1998 [2014] EWFC 6; [2015] 1 FLR 1001 ("Re: DE") relating to cases where a local authority wishes to remove a child to foster care who is currently placed at home under a care order.

Background

3. S was born on 13 December 2016 (19 months). He is the son of the mother and the second respondent, the father. The mother has a teenage daughter, H, from an earlier relationship.
4. In January 2016, care proceedings were concluded in relation to H who had been taken into care in May 2016. With the mother's agreement, H went to live with her grandmother. H had been removed from home as a result of the relationship between the mother and father which, as was described by District Judge Alderson (who heard the subsequent care proceedings in relation to S), was "characterised by alcohol consumed by both parties, but more important and additionally, alcohol which fuelled regular domestic violence within the household".
5. Matters came to a head in May 2016, resulting in H being taken into care. By the time the care proceedings in relation to S came to be determined by District Judge Alderson on 26 May 2017, there was (save for a self-reported glass of wine on either one, or possibly two occasions) "absolutely no evidence at all" that the mother had consumed any alcohol since May 2016.
6. Following the birth of S, care proceedings were issued and the mother and S moved to live in a mother and baby unit. They were still there at the date of the final hearing and finally moved out into their own accommodation on 9 June 2017.
7. In a careful and insightful judgment, DJ Alderson analysed the application for a care order against the backdrop that it was accepted by the local authority that the mother's relationship with S was "excellent". They were bonded; they had formed a close attachment to each other and with the wider family. There were no complaints whatsoever about the mother's ability to parent on "a normal parenting basis".
8. The judge considered the welfare checklist, and was of the view that the local authority had underplayed the effect on S if he were taken from his mother's care. The effect on him of separation would have been "substantial" and thereafter, he would have been subject to chronic delays before a permanent placement was found for him.
9. The judge concluded at 73:

"For all those reasons, I consider that the welfare of [S] demands that, if at all possible, he stay in the care of his mother and the wider family. If at all possible, it requires his parents to stay away from alcohol and it requires his parents to stay away from each other. That is not an easy thing to ask of anyone. 74. You have gone a long way down that road. It has been said that your motivation is caused by compulsion. This is arguable but I know many psychiatrists who would say that it does not matter what causes the motivation, motivation is important and the important thing is that it sticks. I am going to be making a Care Order subject to many conditions, subject to written agreements, subject to court orders and subject to you being honest not only with yourselves but with each other, with [S], with [H] and with the local authority. I believe you can do it but if you do not there is only one place where this matter will go and you will have both lost your son."

10. The District Judge went on to make a care order with the care plan being for S to live with the mother at home, subject to a written agreement.
11. The written agreement (referred to by the District Judge) required the mother to be abstinent from alcohol and said at (iii):

"If [the mother] is aware of [the father] drinking alcohol, or if there are any incidence of direct or indirect domestic violence, she should inform social care."

12. The agreement also provided that, in the event that the local authority sought the removal of S from his mother's care, she was to be given 10 days' notice in writing.
13. On 9 June 2017, the mother and S left the mother and baby unit and moved back into the community, where their progress was good. In their skeleton argument in the appeal, the local authority appeared to "play down" that progress, but the fact remains that in October 2017, the local authority decided to reduce the support which was in place for the mother which had included, amongst other things, home-aid going into the home three days a week. On 5 December 2017, the local authority at a meeting publicly congratulated the mother on her progress and said that it was anticipated that, all being well, they would be looking to discharge the care order in relation to S during the course of 2018.
14. On 27 December 2017, the mother took S to the Whittington Hospital as he was unwell. He was diagnosed as suffering from acute gastroenteritis. The mother was advised to visit her GP within the next two days. The mother duly went to the GP the following day and medication was prescribed.
15. By the evening of 29 December, the mother was becoming increasingly concerned for S. He was listless, not accepting food and vomiting. Given that he was not having dirty nappies, the mother had her doubts about the diagnosis of gastroenteritis.
16. The mother's case at trial was that the fact of S's illness had, through family connections, come to the attention of the father. What is undoubtedly the case is that at approximately 2.00 am on 30 December, the father arrived at the mother's home. The mechanism which allowed her to unlock the outside door from her flat was broken, and she therefore went downstairs and opened the door to the father.
17. The detail of what happened next is not wholly clear and it would not be appropriate for this court to try to work through the ensuing events minute by minute. What is clear is that the father came into the mother's home, and that he accused her of being a bad mother on account of S's illness. The mother alleges that he then assaulted her, which caused her to hit her head and possibly to lose consciousness momentarily. The mother rang 999 and the police responded quickly by coming to the house. Even so, by the time they arrived, the father had left.
18. The police officer who attended, PC Tonse, made a statement on 30 December 2017. The statement was made up from notes which had been made up a few hours after she had attended the mother's flat. The statement described the mother's account, that the father had come to the address to check on the baby and had accused her of being a bad mother. The police officer recorded that the mother had told the officer that she had had three beers. The officer said that, although the mother's speech was slow, it was not slurred. The mother told the officer the she thought she had last eaten at 5.00 pm the previous day.
19. What is apparent from the police statement and the transcript of evidence is that the mother was extremely distressed and, while she described "being hit by her ex-partner", the focus of her distress was on her baby. PC Tonse described how the paramedics did some checks on S and that they had said there were "no concerns for his health", hence, they said, the reason why the hospital and GP had not taken any further action. The officer described how the mother just kept saying that the baby was not right and disagreeing with the paramedics' assessment.
20. During the course of all this, and whilst still at the mother's house (according to PC Tonse's notes), the mother told her that the father had assaulted her 2 weeks previously and then again a week later, on which occasion he had punched her nose causing it to bleed. These two instances had not been reported to the police. The mother, as recorded by PC Tonse, had said "that she would not have called for the police tonight had it not been for her son, who she felt was at risk due to the father's aggressive behaviour." The officer's focus, not unreasonably given the view of the paramedics, was on the assault. The mother's focus, also not unreasonably, was on her baby. Eventually, it was agreed that the mother and S would go by ambulance to hospital.
21. When S was examined in hospital he was diagnosed as suffering from meningitis. He was admitted and remained in hospital for 10 days. The mother stayed with him day and night for the whole period of his stay in hospital.
22. A note of the doctor is recorded in the judge's judgment:

"Talked to mother. Had two beers last night. First time for a long time. Father came to her house as worried about son. Mother said she asked him to leave but he hit her and she called the police."

23. On 2 January 2018, the local authority was informed (by what means is unclear) that the mother and S were in hospital. The mother that same day was handed a letter entitled "Notice of intention to remove [S] from your care on or after 5 January 2018". The letter referred to District Judge Alderson's judgment (referred to above) and the written agreement, before going on to say:

"Due to the significant risk posed to [S] by you not being abstinent from alcohol and from other domestic violence perpetrated on you by [the father] and any contact between [the father] and you, in relation to your failure to inform the Local Authority or the police of at least two occasions in December 2017 when you subsequently alleged to the police on 30th December 2017 that you had been subjected to domestic violence from [the father], the Local Authority has determined that it is necessary to remove [S] from your care to foster care and that there is no other means of safeguarding him."

24. According to a statement, filed upon the direction of this court on 7 June 2018, the local authority say that they first became aware that S had been admitted to the Whittington Hospital on 2 January. At about 13.30 that day, the mother was spoken to by the duty social worker, and was told at the hospital that same afternoon that S would be taken into foster care upon his discharge.
25. The mother sought legal advice and, on 4 January 2018, her solicitor e-mailed the legal department and advised them that he was applying for public funding on behalf of the mother in order to make an application to discharge the care order, and further, that he would be seeking to prevent the removal of S from the care of his mother.
26. On 5 January, the mother agreed for the foster carer to attend hospital in order to meet S and discuss his needs with the staff. On 10 January, S was discharged and placed in foster care where he has remained.
27. On 16 January 2018 (legal aid having been granted), the mother issued her application to discharge the care order. The first hearing of the mother's application was on 13 February 2018. The matter was adjourned to 7 March for there to be a contested hearing in relation to the mother's application that S should, forthwith, be returned to her care.
28. There were significant difficulties in obtaining police disclosure and the police statement, referred to in this judgment, was not served upon the parties until the morning of the hearing. Unhappily therefore, the interim application for S to be returned to the mother's care was not heard for a period of 7 weeks.

Jurisdiction

29. The purported basis of the court's jurisdiction can be found in the order, as can the position of each of the parties.
30. The relevant passage reads as follows:

"5. THE APPLICATION: The application made by the applicant mother is for the discharge of the care order made by this Court on 26th May 2017 and for the Court to use its inherent jurisdiction to return the child to her care.

6. JURISDICTION: The court is satisfied it has jurisdiction in relation to the child as he is habitually resident in England Wales.

TODAY'S HEARING: was to determine whether the court would direct the Local Authority to return the child, [S], to the care of his mother."

31. So far as the parties' positions are concerned, they are recorded as follows:

"12. THE PARTIES' POSITIONS: The Applicant Mother seeks the return of [S] to her care.

The Local Authority seeks to keep the child in care and not to have him returned to his mother's care. They are carrying out assessments of relatives of the mother who reside in Australia.

The 2nd Respondent father supports the mother's application.

The Guardian supports the position of the Local Authority."

32. Judging from the judge's order and judgment, it would seem that neither the parties, nor the judge, considered the court's jurisdiction any further. Neither, it is accepted, was Baker J's judgment in Re: DE brought to the attention of the judge, or applied by him to the facts of the case.

The Law

33. As already recorded, S was the subject of the full care order. In those circumstances, the court was bound by the jurisdictional principles which relate to care orders and care planning. That means that the inherent jurisdiction cannot be used as a means of diluting, or circumnavigating, a local authority's right to exercise parental responsibility following the making of a care order under section 33 and subject to section 34(4) of the Children Act 1989.
34. That this is the case could not have been stated more clearly than was done by Lord Nicholls of Birkenhead in Re: S (Minors) Care Order Implementation of Care Planning; Re: W (Minors) Care Order Adequacy of Care Planning [2002] UKHL 10; [2002] 2 AC 291; [2002] 1 FLR 815 at 23:

"While a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1)."

35. Also, more recently in Re: W (Care Proceedings Functions of Court and Local Authority) [2013] EWCA Civ 1237; [2014] 2 FLR 431 Ryder LJ said:

"71. It can be stated without question that once a full care or supervision order is made the family courts' functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued."

36. Whilst the court has jurisdiction under its inherent jurisdiction to prevent the removal of a child (subject to a care order), the House of Lords made it clear in Re: S that an injunction under the Human Rights Act 1998 (HRA 998) can be utilised in order to achieve a similar outcome.
37. From paragraph 22 onwards of Re: DE, Baker J traced the jurisdictional route to an application for an injunction under HRA 1998. Baker J noted that other potential remedies (for example, judicial review) do not ordinarily provide adequate protection for a family when a local authority is planning to remove a child, and that, as a consequence, the appropriate route will be for an application to be made under section 7 of the HRA1998.
38. Baker J was considering the approach to such applications in 2015, and therefore after the judgments had been reported in the well-known cases of Re: B (A Child) Care Proceedings Threshold Criteria [2013] UKSC 33; [2013] 1 WLR 1911 and Re: BS Children Adoption Order Leave To Oppose [2010] EWCA Civ 1146; [2014] 1 WLR 563:

"33. Since that case, the decision of the Supreme Court in Re B [2013] UKSC 33 and the series of cases decided in the Court of Appeal in 2013 leading to the decision in Re B-S (Children) [2013] EWCA Civ 1146 have changed the landscape for decision-making about children who are the subject of care proceedings. It is now clear, in the words of Baroness Hale of Richmond in Re B, supra, at paragraph 215, that:

'…an order compulsorily severing the ties between a child and her parents can only be made if 'justified by an overriding requirement pertaining to the child's best interests'. In other words the test is one of necessity. Nothing else will do.'

Any local authority and court making decisions about the long term future of children must therefore address all the options which are realistically possible and analyse the arguments for and against each option before coming to a decision: Re B-S, supra.

34. To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority's decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child's welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family's Article 8 rights."

39. With the approval of Sir James Munby (as he then was), Baker J went on to set out guidance as to how such cases should be dealt with in the future saying:

"To avoid the problems that have arisen in this case, the following measures should be taken in future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days' notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home."

40. The local authority and the child's guardian each submit that the appeal should be dismissed. The local authority submits that the issue at the hearing was to decide whether S's welfare demanded "immediate separation". They submit that, given their view that instant removal was required, the guidelines contained in Re: DE had not been engaged. For example, whilst they submitted that the 10 days' notice period provided for in the written agreement had not been complied with, that was acceptable given that the local authority considered the case to be an emergency. Further, the local authority submitted that those aspects of the protocol which referred to the Human Rights Act were not relevant, given that the mother had not made a Human Rights Act application.
41. With respect to the local authority, as the court had power to make an identical order by way of the proper jurisdictional route (namely an application for an HRA injunction), the considerations found in those parts of the protocol relating to the HRA would have applied equally to an application under the inherent jurisdiction.

The Judgment

42. The judge's judgment is brief and, unfortunately, contains a number of factual errors. For example, the judgment says that the mother had told PC Tonse that she had been "punched in the head by her partner" whereas, in fact, the mother had been clear (as was confirmed, both in the police officer's statement, and in her oral evidence) that the mother had, at all times, referred to the father as her "ex-partner". The judge, by way of further example, says:

"So if she was drinking beers 18 hours after eating nothing on an empty stomach, they may well have had an influence on her disproportionate to the quantity."

43. But, according to the police officer, the mother thought she had eaten some toast at 5.00 pm the previous evening so nowhere near 18 hours earlier.
44. The judge made findings against the mother to the effect that she was in breach of the written agreement. In particular, the judge accepted (as he was entitled to do) the evidence of PC Tonse, that the mother had told her she had been the victim of two previous assaults at the hands of the father. That she had said this was denied by the mother, who gave evidence and was cross-examined.
45. At the hearing, counsel (Mr Richardson for the father) offered to call the father in order for him to be cross-examined about the events of 30 December and, no doubt, in relation to the two earlier alleged incidents. No party required him to be called.
46. Having heard and seen both the mother and PC Tonse give oral evidence, in my judgement, the judge was undoubtedly entitled to conclude that the mother was not being honest and to accept the police officer's account of what the mother had said to her in the flat in the early hours of the morning. The judge, however, went on (without having heard evidence from the father) to conclude at paragraph 13:

"So we have three assaults in three weeks. [The mother] is, unfortunately for her, telling the truth when she said that the police officer and therefore 30 December is not an isolated incident in the relationship between her and [the father]... So there was that; there was direct contact on at least, to my mind, three known occasions during which [the mother] was assaulted."

47. And At 23:

"I have already found that there has been at least three incidents when he has assaulted her. There may have been, and I do not know, other occasions when he has come to the property."

48. The judge concluded that S was at serious and immediate risk of harm as, he said, nothing could be put in place which would protect him from his father's behaviour. At the request of counsel for the father, the judge went on, in the briefest of terms, to consider the welfare checklist. In relation to any change in circumstances, the judge noted that this was "a big change in the circumstances for [S]" but that it was a "proportionate approach".
49. With respect to the judge, in my judgment, such a bland recording, insufficiently reflected the reality of what was happening to S. S had never been apart from his mother. All those involved throughout his life to date accepted unreservedly that the mother's care of S was excellent, as was their attachment. At no stage had the local authority sought to limit the mother's care of S whilst he was in hospital, which was at all times wholly unsupervised. Nowhere, in either the judgment or the local authority material, have I seen any indication of anyone considering the effect on this baby of removal from the care of his mother. S had been dangerously ill and was only starting to convalesce and to recover; then was discharged, not home to his mother and all his familiar surroundings, but to a strange place with only strangers around him. I say this to highlight why the protocol set out in Re: DE exists and should be applied in all cases.
50. In giving permission in this case, I directed the local authority to provide a statement setting out the manner in which they complied with the Re: DE protocol and, in particular, to provide full details of the involvement of the applicant in the decision-making process, and the details of the process by which the local authority - to use the words of Baker J in Re: DE - "rigorously analysed all the realistic options; considering the arguments for and against each option" prior to removing S from care of his mother. The local authority was further directed to exhibit all minutes and written recordings in relation to the decision not to return S upon his discharge from hospital, including the written records required under the Re: DE protocol.
51. The statement supplied by the local authority in response to that direction makes no mention of the case of Re: DE at all. It does not exhibit any minutes or written recordings in relation to its decision to remove; it does not explain how the mother was consulted, save to detail (by way of chronology) how the previously made decision was conveyed to her at hospital by the duty social worker.
52. Mr Parker, who has only recently been instructed on behalf of the local authority, acknowledged this to be the case and apologised to the court. The local authority could offer no explanation for the failure to follow the Re DE protocol other than to say that the local authority regarded the case as an emergency. Further, the local authority suggests that in granting permission to appeal and referencing "what is likely to be permanent removal" in respect of S, demonstrates an incorrect approach and incorrect analysis of the judgment on my part. The hearing was, they submitted, focused solely on S's safety which required immediate removal, and the long-term plan was a matter for the application to discharge the care order. The local authority submit that it would have been premature for them to have engaged in any sort of Re: BS analysis as required by Re: DE, or indeed to "rigorously consider other options". That, they say, could be done later.
53. I do not accept that to be the case. I would have found such a submission more convincing if it had not been patently clear from the papers that, from as early as 2^nd January, the local authority had no intention of rehabilitating S to his mother once he had been removed.
54. The position as recorded on the order and confirmed orally to the judge at the hearing was that, far from consideration being given to S returning to the care of his mother, the local authority was forthwith considering placing him with a family member in Australia. This was confirmed only two weeks later in the care plan dated 21 March 2018. In addition, it is absolutely clear, by reference to the fact that the decision to remove S from his mother's care was made the very day the local authority was informed of the crisis, that no consideration was given as to whether anything could be done to salvage the situation rather than the knee-jerk reaction of immediate removal.
55. During the course of the trial, those representing the mother sought to call and adduce evidence in respect of the quality of her care of S on a day-to-day basis, and particularly in relation to her exemplary care of him whilst he was in hospital.
56. The judge declined to hear any evidence to this effect. The judge said he was working on the assumption that the mother was able, in principle, to "look after the child". It is because, he said:

"She allegedly had failed to keep to the written agreement and that she has put the child at risk. That is the issue. It is simple as that. It is a very easy, very short and very small issue."

57. I do not agree.
58. The judge concluded his discussion by saying:

"I am not taking any notes of anything to do with what went on in the hospital because it is irrelevant to my decision-making process at this stage."

59. The transcript reveals that a heavy emphasis was laid by both the local authority and the judge on the undeniable breach of the written agreement. The breach of the written agreement was undoubtedly extremely serious; that does not mean that there were no wider welfare issues for the court to consider. Nowhere is the mother given credit for her tenacious pursuit of treatment of S, or that she called the police even though she knew it could well lead to her losing S, her child. The mother, nevertheless, dialled 999 because she felt her child to be at risk. While such matters may not ultimately have led to a different outcome, they should have been placed into the scales.

The Grounds of Appeal

60. Ground 1 says:

"the court failed to carry out a full assessment of the risk to the child should he be returned to the care of his mother to the level required when considering what is likely to be the permanent removal of the child from the care of his mother. The court failed to consider the full background of the mother's care of the child and the strength of her ability to care for him. The court was given no evidence of protective measures that were available to enable the child to remain in the care of his mother and therefore the court failed to consider whether the removal of the child was the only viable, or least interventionist, option open to it."

61. Ground 2 says:

"that the court made findings of fact against the mother by ignoring the written statement of the father which was unchallenged by any party in cross-examination."

Discussion

Ground 1

62. In considering ground 1, I set aside for a moment that the court had no jurisdiction under the inherent jurisdiction to make the order sought, and work on the basis that, had the right application been made (namely under HRA1998) the court could have made an injunction preventing the removal of S from his mother's care.
63. In my judgment, the absence of the availability of the guidance in Re: DE resulted in the judge having too narrow a focus and led to him failing properly to consider the wider issues. I note from Mr Richardson's position statement at first instance that, without referring to Re: DE specifically, he urged the court to consider all possible options, an invitation declined by the court.
64. I am conscious of the submission made by both the local authority and the guardian that the court will approach "slow burn" or "gradual deterioration" cases somewhat differently from crisis cases. That is undoubtedly right. But that does not mean, where a child has been living successfully at home under a care order, that following a crisis that child can be unilaterally removed by the local authority without any of the protective processes enumerated in Re: DE having been carried out.
65. In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.
66. One of the things that went wrong in the present case was the delay in the matter coming to court - some 7 weeks. In my judgment, applications such as the present, properly brought under the HRA 1998, should be brought before the court with the same speed and urgency as an initial application for an interim care order where removal of a child is sought. Each application involves the proposed removal of a child from his or her home and (it is accepted by the local authority) the test for immediate removal is the same in both cases, namely: "does the child's safety demand immediate separation?"
67. All attempts should be made to adhere to this, although I fear this may be a counsel of perfection given that a parent's only route to court (once a full care order is made) is via an application to discharge that care order, coupled with an application under the HRA1998. Unlike care proceedings, there is no automatic right to legal aid in discharge proceedings and inevitably there is, therefore, a delay as the application for legal aid for the parents is processed. It is to the immense credit of the mother's solicitor that he managed to obtain legal aid for her application at the speed he did.
68. Further, when making a removal order in respect of a very young child and where it is inevitable that the final hearing will not take place for several months, the court must balance the effect of long-term removal of the child from its parents with the risk of short-term harm if he or she remains with him: Re: M (Interim care order removal) [2016] 1 FLR 1043.

Ground 2

69. In relation to ground 2 of the grounds of appeal, whilst I indicated at the permission stage that this ground would not in itself have merited permission to appeal, having had the benefit of reading the transcripts, I have become increasingly concerned at the way the trial proceeded.
70. I am fully aware of the time pressures on the Family Courts and of the need to deal with interlocutory applications in a proportionate manner. However, the importance of this hearing to S cannot be overstated. He had never been away from his mother and no one could doubt that the decision of the judge on 7 March 2018, was going to have a significant impact on the ultimate outcome of the case. Once S was removed from her care, the mother had no opportunity to demonstrate to the judge that, serious though the situation was, she could still provide a safe, secure environment for S and that, whilst her lapse was serious, it should be considered against the backdrop of her (almost) total abstinence from drink and her separation from the father. My view of the obstacles now in the path of the mother was confirmed when Mr Parker told the court that since 7 March, routine hair stranding testing has no longer been taking place as there was no plan to return S to the care of his mother. As a consequence, the mother cannot even establish that she is alcohol free.
71. The judge necessarily had to make findings as to what occurred on the night of 30 December. He found that the mother had seen and been assaulted by the father on three separate occasions. It follows from that finding, that the mother had not told either the police or the local authority about the two earlier occasions of violence. The judge further found that the mother's written and oral evidence to the court was untrue and the product of her realisation of the consequences of her account of the events given by her that evening to the police.
72. In order for the judge to reach these damning findings of fact, he was required to consider all the available evidence. In my judgment, a serious error was made by the local authority in failing to cross-examine the father. It is not enough, metaphorically, to shrug the shoulders and say: "He would say that wouldn't he?" of the father's statement in support of the mother's account. The father's evidence was directly relevant. More serious still is that the judge made specific findings of assault against the father, a man who was both a party and a witness, without hearing his evidence, in circumstances when he was available and willing to give evidence and to be cross-examined. In my judgment, this was clearly unfair and a serious procedural irregularity.
73. Almost by a side wind, there is now a finding of fact that this father assaulted the mother on three separate occasions, all within a matter of weeks of each other, when a non-molestation injunction was in place, and at a time when his wife was being given (on the local authority's case) one last chance to bring up their child. It is rightly difficult for a party to go behind a finding of fact made against them by a judge after a trial where a party has been represented. But as a consequence of the findings, all future assessments of this father, and any decisions made in respect of either S (and indeed any child this father may have in the future) will have these serious findings as their starting point. Mr Parker submitted that, in some way, the findings carried less weight because this was an interim hearing and could be, therefore, reviewed at a final hearing; I am afraid I cannot accept that to be the case.
74. Having read and reread the judgment, it is abundantly clear that this judge was making positive findings that this father had assaulted the mother on three separate occasions, and indeed all the evidence available makes it absolutely clear that, from 7 March onwards, the local authority has proceeded on precisely that basis. These findings were made, without the father having an opportunity to give evidence in circumstances where he was present in court and willing to go into the witness box and expose himself to cross examination.

Outcome

75. In my judgment, the appeal must be allowed on both grounds of appeal. However, it seems to me that the finding made by the judge, in relation to what the mother had actually told the police officer on the night of 30 December, must stand; the police officer and the mother each gave evidence; they were each cross-examined. The findings made against the father, namely that he assaulted the mother on three separate occasions, must however be, set aside.
76. The question then remains as to what should happen next. I am conscious that this is, in effect, an interlocutory appeal and that the discharge proceedings are still in train. I am told that there is a case management hearing listed for 4 September. For my part, I very much hope that that hearing can be retained. It seems to me that the proper course is for the case to be remitted for case management directions within the discharge proceedings.
77. Having thought carefully about it; given that the findings (which this court has set aside are a consequence of procedural irregularity), it would not be appropriate for HHJ Oliver to continue to deal with this matter. The matter must be put before a different circuit judge who should be nominated by the designated family judge of the relevant court.
78. In those circumstances the appeal will be allowed.
79. LORD JUSTICE DAVID RICHARDS: I agree. I would only add that by setting aside the findings made against the father, that does not conclude the matter. At any further hearing it will be open to the local authority to seek to establish those allegations and they will then have to be the subject of evidence at that hearing.
80. LORD JUSTICE BEAN: I agree with the judgment of King LJ.

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