England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
AND IN THE MATTER OF BH (A CHILD) (HUMAN RIGHTS ACT INJUNCTION)

		Leeds District Registry Leeds Civil Hearing Centre, Coverdale House 13-15 East Parade, Leeds, LS1 2BH
		Date Handed Down: 23rd February 2017

William Tyler QC (sitting as a Deputy High Court Judge) :

1. [This paragraph has been removed from the reported version of this judgment simply for the purpose of preserving the anonymity of the child and her family.]
2. On 11^th January 2017, late in the court day, I made an injunction prohibiting X local authority from removing BH, a 2-year old child, from the care of her paternal great-aunt ('GA'), notwithstanding that BH is a child in the care of X local authority pursuant to a final care order. Time did not permit a reasoned judgment. The following records my reasons for having made the order.

The Applications

3. On 19^th December 2016, GA, then unrepresented, issued applications for a 'residence order' and to discharge the care order in relation to her great-niece, BH, and for permission to make such applications. Her reason for so doing was very simple: BH had been placed in her care by X local authority and was the subject of a final care order; the local authority had decided to terminate the placement and had given notice on 8^th December 2016 of its intention to remove BH on 22^nd December; GA's application was explicitly intended 'to prevent social services from removing [BH] from my care'.
4. A children's guardian was immediately appointed (luckily this could be the same guardian who had acted in the care proceedings) and the applications were listed urgently before HHJ Hillier on 20^th December 2016. At that and a subsequent hearing on 23^rd, a written agreement having been concluded between GA and the local authority putting in place various interim measures aimed at supporting and monitoring the placement, the authority agreed not to remove BH before the hearing listed before me on 10^th and 11^th January 2017.
5. During that hearing all parties accepted that, with or without permission, GA is not entitled as a matter of law to apply to discharge the care order (see section 39, Children Act 1989: only a person with parental responsibility for a child, the child herself or the designated local authority may make such an application). However, that matters little as, with leave of the court or the permission of the local authority, GA would be entitled to apply for a Child Arrangements Order in relation to BH (section 10, Children Act 1989); if granted 'with respect to the living arrangements' of BH, such an order would have the effect of discharging the care order in any event (section 91(1), Children Act 1989). During the hearing, GA made an application for an injunction prohibiting the removal of BH from her care, pursuant to section 8 of the Human Rights Act 1998.

Relevant Background

6. BH was born on a day in December 2014, the first child of two very young parents, M and F. An interim care order was made the next day. The day after that, M and BH moved to live in a mother and baby foster placement. That arrangement broke down in August 2015 due to the mother's behaviour, necessitating a move for BH and M to a second such placement.
7. I need not in this judgment dwell on the reasons why the local authority asserted, and M, F and the children's guardian agreed, that BH could not appropriately live with her parents.
8. Due principally to the need for a number of relatively lengthy and, it seems, consecutive assessments, the care proceedings lasted for longer than ought to be usual.
9. The assessment of the paternal grandmother ('PGM') concluded negatively in September 2015. The assessment of GA, however, was positive. In January 2016, the local authority granted her, as a connected person, the 'temporary approval' as a foster carer permitted by Regulation 24 of the Care Planning and Case Review (England) Regulations 2010 ('the Regulations'), in effect authorising her as a kinship foster carer for BH for a period of 16 weeks. At the Issues Resolution Hearing before HHJ Hunt on 10^th February 2016 both parents voiced their agreement with the proposal that BH live with GA. The judge made a final care order.
10. On 29^th February 2016, BH moved to live with GA. This was BH's third placement in just 14 months of life. She has remained in GA's sole care to date.
11. The care plan then submitted by the local authority, agreed by the parents and approved by the court, had recorded the following:

'It is proposed that [BH] is placed in the care of her paternal great-aunt subject to a Care Order for the period of the regulation 24 approval. An application for discharge with a view for a Special Guardianship Order being granted will then be considered.'

Due, I am told, to an outstanding medical report, the special guardianship assessment was not completed in the 16 weeks contemplated, nor indeed many subsequent weeks.

12. Regulation 25 of the Regulations allows for a single extension of the temporary approval of a connected person for a further period of 8 weeks. That approval was given on 20^th June 2016. It expired on 15^th August 2016. Regulation 25 provides:

'(6) If the period of temporary approval and of any extension to that period expires and the connected person has not been approved as a local authority foster parent in accordance with the Fostering Service Regulations, the responsible authority must terminate the placement after first making other arrangements for [the child]'s accommodation.'

In fact, the local authority took no action (nor indeed any decision) to terminate the placement in August, or any time before December 2016. BH's placement with GA during that period and currently has been described throughout the hearing before me as 'unregulated'.

13. An incident took place at GA's home over the weekend of 27^th August 2016, involving two of her relatives, respectively a young adult and a teenager, the detail of which is not relevant to this judgment and any blame for which could not possibly attach to GA. However, during the investigation by social services into this incident and the police Achieving Best Evidence interview of the teenager, the following concerns came to light:

a) allegations were made that 'unapproved adults' had cared for BH and that 'unknown adults' had stayed in the home;

b) it was alleged that GA regularly, albeit on a 'recreational' basis, used cocaine and that she frequently consumed alcohol to excess.

Some evidence was apparently shown to the social worker, 'SW', in the form of photographs (dated in August 2016) of GA taken at the beginning and at the end of a night out, clearly intoxicated in the latter, and of a text message (dated in March 2016) making reference, albeit veiled, to what was said to be an intention to use cocaine that night. I have seen neither the photographs nor the message.

14. When initially asked about these allegations by the social worker, in the presence of her young adult son, GA denied them. At a further social work visit a few days later, she admitted that she had used cocaine on two occasions, in the months of July and August and that BH had been cared for on these (and some other occasions) by GA's son or her teenage niece.
15. The section 47 investigation set in train as a result of the initial allegations concluded with a report dated 5^th October and signed off by a manager on 12^th October 2016. The report's recommendations were that there should be drug and alcohol testing of GA and that she should access drug support services, that there be increased monitoring through weekly social work visits, more frequent health visitor visits and the child's attendance on Monday mornings at a nursery, that a written agreement be concluded and adhered to and that legal advice be sought by the local authority.
16. For various reasons for which GA cannot be blamed, the hair sample to be used in the drug testing was somewhat delayed in the harvesting. It was collected on 15^th November 2016. The report, available on 1^st December 2016 assessed that:

'In our experience, these results are compatible with [GA] having used cocaine on what was probably at least a few occasions during each of the months from around May to September 2016. However she probably abstained or predominantly abstained from cocaine use during the approximate 4 to 5 weeks prior to sample collection.'

This, of course, represented, in both duration and frequency, drug use to a somewhat greater extent than had been previously admitted. In addition, one of the sections of hair (representing approximately April to May 2016) also contained a 'very low level' of MDMA; GA has consistently and continues to deny knowingly taking ecstasy.

17. The same hair sample was used to test for evidence of excessive alcohol use. It was thought to be due to the absence of an accompanying blood sample and possibly to the use of certain cosmetic hair products that the results in relation to Ethyl Glucuronide (EtG) were somewhat inconsistent with those in relation to Fatty Acid Ethyl Esters (FAEE). In consequence, the results were deemed not to provide sufficiently reliable evidence to indicate excessive alcohol consumption in the six months leading up to November 2016, even if 'it is likely that her declared frequency of alcohol consumption during the majority of the indexed period is probably understated'. Further testing, to include fingernail and blood samples was recommended but has not yet taken place.
18. The receipt of the drug testing results in December led to a fresh section 47 investigation. Without initially being told the detail of the results, GA was again asked by the social worker what she thought would be shown. She maintained her account that she had only taken cocaine on two occasions. She was then confronted with the results of the tests. She quickly accepted them, admitting to the social worker that she had taken cocaine on approximately two occasions each month during the time BH had been in her care. She in fact admitted having done so for about 18 months, notwithstanding that the testing results could not – due to hair length – establish use for more than six months. She stated that there had never been any drugs in the house and that she had only taken drugs on occasions during which her adult son and his partner were babysitting BH and staying overnight to do so.
19. This second section 47 investigation, concluding on 7^th December 2016, recommended an urgent professionals' meeting to discuss 'the placement's viability and risk factors'. Between the two investigations there had been an 'attachment assessment' undertaken by the social worker; this had 'clearly indicated that [BH] has a secure attachment to [GA]'. The professionals' meeting, held on 8^th December 2016, considered the situation and concluded that notice should be given on the placement. This was duly done, with the authority's intention to remove 14 days thence notified to GA.
20. A family meeting on 14^th December 2016 culminated in a unanimous view that members did not want BH to be placed in foster care. Three possible alternative family placements were proposed, with the paternal grandmother ('PGM') emerging as the family's chosen first priority. An urgent regulation 24 assessment was undertaken, temporary approval being given on 20^th December. Thus the local authority's plan, when the case came before me, was immediately to remove BH from the care of GA and to place her with PGM. Parenthetically, two relevant factors should be noted: first, that there had been a negative assessment of PGM in the original care proceedings; second that BH had for some time had regular if not very frequent contact with PGM, with the result that she was a person with whom BH was already familiar.

The Evidence and the Hearing

The shape and scope of the hearing

21. At the outset of the hearing I expressed my concern at the prospect of being asked to make effectively a final decision on GA's application, which would come down to choosing whether BH's welfare would better be met:

a) by making a private law order placing her in GA's care, necessarily in the process terminating the local authority's parental responsibility, or

b) by deciding to dismiss GA's applications, leaving the local authority to exercise its parental responsibility as it saw fit and subject only to the relatively weak fetter of section 33(4) of the Act.

The latter course would see BH's immediate removal from GA's care and her placement with PGM. That placement, however, was by no means assuredly one which could afford permanence: the full assessment has not been carried out. I did not know if the alternative, were PGM not (at the second attempt) to be approved, would be another, as yet unassessed, kinship placement, or even long-term foster care or adoption. In short, not knowing what were the various viable options it would be impossible to assess the relative welfare advantages and disadvantages to BH of GA's claim.

22. Although the hearing had been set up as though it might be the final hearing of GA's applications, given my observations, the rapidly diminishing time available to us and the apparent evidential deficits, Miss Worsley for the local authority took the realistic decision not to seek to persuade me to hear GA's applications to conclusion during the hearing. The guardian had been called upon to produce a report in a very short timeframe and had helpfully done so in the context of this hearing being used to reach final decisions. She had reached the view in that context that she could not support GA's applications and so urged their dismissal. In light of the discussions between the bench and the bar, however, while not resiling from her 'final' recommendations, she inclined to the view that this hearing should be used simply to regulate the interim position to pertain until the case could be heard to conclusion in the light of a rather more precise picture of the possibly various realistic options for BH.
23. M and F have been unrepresented before me due to the unavailability to them of public funding (notwithstanding that the various applications profoundly affect the interests of a child for whom they each hold parental responsibility). Very kindly, the solicitors who represented each of them in the care proceedings have each provided some time – unpaid of course – to discuss the various issues with the parents. With the benefit of this advice M and F have been able to participate in the proceedings. They each understood and agreed that such an important decision might better be made when in receipt of all relevant information and did not oppose the notion that this could only be an interim hearing. M and F were neutral in relation to the question of BH's placement in the intervening period.
24. Thus a single issue crystallized: whether or not, pending final determination of the case, BH should be removed from GA's care immediately (in the knowledge that she would be placed, at least initially, with PGM). Given that there is a final care order in favour of the local authority, my power to prevent removal could, as a matter of law, derive from one of only two sources: either the power flowing from the Children Act 1989 ('the Act') to make an order which had the effect of discharging the care order or the power to injunct the local authority from an act which would constitute an unlawful breach of a person's human rights. Given that the former course would, in the context of the outstanding and incomplete assessments, clearly be premature, it was GA's application for an injunction preventing removal on which the hearing focussed.
25. As to the length of the period in contemplation, I was told by the local authority that, while PGM had been approved on a temporary basis pursuant to Regulation 24 (as above), it would be a considerable time before either a special guardianship assessment or a full kinship care assessment could be completed. Only four weeks were needed for the principal social work element of this; this is perhaps not surprising given how much work had already been done as part of the original full assessment and then the Regulation 24 assessment. The necessary information from the General Practitioner, which can often slow the process significantly, would take only between five and seven days in this particular case. The difficulty was caused by the necessity of obtaining full checks from the Disclosure and Barring Service which, I was told, routinely take up to and often more than 12 weeks to process. Rather unsatisfactorily, an application for such checks had not been made in December, for example on or shortly after the 14^th December family meeting at which PGM had emerged as the frontrunner. Accordingly, and while the case will be reviewed in a few weeks, in the hope that quicker progress can in fact be made, the assessment may take up to four months from the point at which the application is made for DBS checks, with the consequence that it is an 'interim' period of potentially as long as five months which I am here considering.
26. During the hearing, I heard from SW, from GA and from the children's guardian, Ms Horner.

The social worker's evidence

27. The risks identified by SW in the course of her evidence in relation to the ongoing placement of BH with GA can be characterised as (a) the use of drugs and alcohol, (b) adults having been invited to the home notwithstanding their not having been subjected to prior DBS and/or social services checks, (c) BH having been left in the care of others without social services having been aware of the fact, and (d) an alleged lack of honesty and cooperation.
28. As to the use of drugs and alcohol, SW conceded that there is no evidence that any drugs have ever been taken at the home or in the presence of BH, nor that BH has ever been left without appropriate and attentive carers during evenings (and overnight) on any occasion during which GA may have been under the influence of either drugs or alcohol. Further, she acknowledged that GA has cooperated with the drug and alcohol testing asked of her thus far. SW's concerns – necessarily distilled somewhat for the purpose of this judgment – were first that the entire picture may not be known, second that there is a nebulous but nonetheless real range of other risks and dangers which attach to even occasional and social emersion in drug culture and third that a jaded, exhausted carer the morning after such a night out is scarcely likely to be appropriately attentive and engaging. SW accepted that there is no evidence whatsoever to conflict with GA's assertion that she has touched neither alcohol nor drugs since September 2016.
29. The evidence in relation to unknown and unauthorised carers also benefited from its being forensically tested. It transpired that there is no reliable evidence of BH being left in the care of any unknown or unsuitable person. At its height, the evidence established two minor criticisms: first that GA's adult son, who is permitted by the local authority to look after BH, did so on occasions of which the local authority was not made aware; second that GA's niece very occasionally looked after BH; there is nothing known about her to suggest that she is not a wholly suitable person to do so, but for it to take place without DBS checks represented a breach of the 'rules' in place.
30. Aside from the non-disclosure of the fact of family members very occasionally caring for BH, the lack of cooperation and honesty complained of boiled down in cross-examination and questions from the bench to two issues.
31. The first was the alleged dishonesty inherent in the supposed dissonance between GA complaining, particularly at the beginning of the placement, of a lack of family support and the later recognised fact that every fortnight she was able to enlist a babysitter from the family in order that she go out to a local pub to drink with (and, it transpires, on occasion take drugs with) friends. It quickly emerged, in the face of well targeted questions from Miss Best on GA's behalf, that the two notions are not necessarily mutually exclusive. It is correct that GA, for various reasons, received very little support in the early part of the placement and validly regretted the inability to have a few hours to herself to sit down with a coffee or to do her shopping; it is also correct that she had (roughly) fortnightly nights out; on the local authority's own evidence, she complained of the former but not the latter. This, then, does not represent dishonesty.
32. The second criticism in relation to dishonesty and a lack of openness related to the issue of cocaine. When first confronted with the allegations which had been made by a family member, GA denied them. Faced with some limited evidence, she made equally limited admissions in relation to cocaine use. It was not until shown the testing results that she admitted the truth of what was contained in them (in fact, rather more). SW accepted that it is entirely predictable that an adult, especially one with as much to lose as did GA, would initially deny and then understate wrongdoing as significant as drug-taking.
33. SW was unable to point to any other aspect of her dealings with GA which demonstrated an inability or unwillingness to work openly and honestly with the local authority.
34. As to the degree of monitoring the local authority had thought necessary between the hearing on 23^rd December 2016 at which it agreed not to remove the child pending this hearing (from which I might be able to infer the degree of risk the local authority considered to pertain in this period), I was told that there had been six social work visits to the house, three by SW and three by members of the duty team. None of these visits had taken place after 9 pm or at weekends, viz. the times when one might expect unauthorised carers or visitors and/or the use of alcohol or drugs.
35. SW accepted when it was put to her in terms that, if various protective measures are put in place, to include announced and unannounced visiting of the home, weekly drug testing and BH's attendance at nursery, then BH will not be at any particular risk if she remains in GA's care until the final hearing of the application. For SW, the greater issue seemed to be that the placement is now 'unregulated', in the sense that GA is not an approved local authority carer.
36. SW accepted the guardian's view that the assessment of PGM is yet in its infancy and that, although a positive viability assessment engenders a degree of optimism, there could be no certainty as to the final plan for BH.
37. SW also freely accepted that BH would suffer harm through her being significantly upset and disrupted in the event of her removal from GA's care.

GA's evidence

38. GA told me that her use of cocaine was a result of poor decision-making when in drink. Beginning about 20 months ago, around the same time her son moved out of her home to live with his partner, she had been offered cocaine during a night out at a local pub. She would have refused if sober, but had accepted due to being in drink. There was no particular pattern, she said, to her behaviour. At most it was once, sometimes twice, per month. She described her choices as stupid and told me that she bitterly regretted having used drugs.
39. As to her dishonesty in relation to her use of drugs, she told me that she was taken by surprise when first asked by the social worker. Her son was there when she was asked and she was 'mortified' to be confronted in front of him. She could not admit to anything without speaking to him first, so she denied the allegations, spoke to her son, and then later told the social worker the partial truth. She admitted that she had even then understated the true extent of her drug use.
40. GA admitted that she might find herself tired and grumpy the day after such a night out but was adamant that BH had never been left inappropriately or not cared for or at risk of harm through GA's conduct or subsequent care. She told me that she had entirely stopped using alcohol and drugs since she was first confronted about the issue. She told me of the various courses on which she had enrolled to help her to achieve ongoing abstinence.
41. GA absolutely and unequivocally assured me that the further drug testing results which will inevitably be obtained will show no drug use and no excessive alcohol use since February 2016. These assertions will of course be put scientifically to the test to allow for an informed determination at the final hearing.

The children's guardian's evidence

42. Ms Horner, the children's guardian, explained to me that, forced in her report essentially to reach a final conclusion, she had found herself in opposition to the application for a child arrangements order and its consequential discharge of the care order. Contemplating the question instead of an interim placement pending final hearing, Ms Horner favoured BH remaining with her great aunt, while still the subject of a care order. Given the secure attachment, in the event of continued abstinence and a demonstrated ability to work with professionals, she did not rule out the prospect of the final balance tipping towards BH remaining in the long-term in her great aunt's care. In order to ensure BH's safety in the interim period, Ms Horner recommended a very clear and prescriptive written agreement regulating exactly who was allowed to be in BH's presence and providing her with care, in what circumstances and at what times. Ms Horner was particularly worried, given the fact that assessments are not complete, at the notion of moving BH now and it later transpiring that this would be the first of a number of placement moves.

The parties' submissions

43. Miss Best, on GA's behalf, urged me to accept that, even on the social worker's own evidence, the immediate removal of BH from her great aunt's care was not necessary in order to protect her or to promote her welfare. Regular drug testing, continuation of prevention courses already begun, engagement with local services and enhanced monitoring of the placement of the child's welfare would, she argued, provide a safe interim position, and, as such, a proportionate response.
44. Miss Worsley, setting out the local authority's position, accepted that the question at this interim stage is largely one of necessity and proportionality. Highlighting differences between the current case and the facts underlying some of the established case-law, she pointed out that this is not a case in which removal from a parent or a person holding parental responsibility is envisaged, that this is not a proposed placement outside the family and that the new carer is someone already known to the child; further, that the plan envisages significant ongoing contact between GA and BH, at least in the interim. The adequacy of the proposed interim protective measures, she argued, must be assessed in the light of admitted dishonesty on GA's part and prolonged concealment by her of certain worrying aspects of her lifestyle.
45. The parents, as I have indicated, adopted a neutral position in relation to the interim situation. They did not want a move from GA which might leave BH devastated nor to begin a placement with PGM and later to find out that it did not work.
46. The children's guardian did not support interim removal for the reasons I have set out above.

The Law

47. Pursuant to the care order made on 10^th February 2016, BH is in the care of the local authority. This creates the obligation on the local authority to 'receive the child into care and to keep him in their care while the order remains in force' (section 33(1), Children Act 1989) and gives it the power 'to determine the extent to which a parent, guardian or special guardian of the child […] may meet his parental responsibility for him' (section 33(3), Children Act 1989). That power effectively to override the wishes or aspirations of a person holding parental responsibility for the child is not, however, to be exercised 'unless [the local authority is] satisfied that it is necessary to do in order to safeguard or promote the child's welfare' (section 33(4), Children Act 1989).
48. In the current case, GA does not hold parental responsibility for BH. Had a special guardianship order been made as had originally been contemplated, then she would do so and the original care order would automatically have been discharged by operation of the making of the order (section 91(5A), Children Act 1989). In such circumstances, the local authority's plan to effect removal from GA's care, if not agreed by GA, could only have been realised by fresh proceedings brought under Part IV of the Act.
49. The European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR') provides at article 8:

Right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This, and the other rights codified in the Convention, is expressly incorporated into domestic law. The Human Rights Act 1998 provides:

6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

50. As to existence or otherwise of an article 8 relationship for the purposes of the ECHR, Munby LJ in Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608, [2005] 2 WLR 325, [2005] 1 FLR 308 said this:

[79] I agree with Dyson LJ that what he calls the core principle is to be found in Lebbink v The Netherlands at para [36]:

'The existence or non-existence of "family life" for the purposes of Art 8 is essentially a question of fact depending upon the real existence in practice of close personal ties.'

Typically the question will be, as the court put it in the same case at para [37], whether there is 'a close personal relationship', a relationship which 'has sufficient constancy and substance to create de facto "family ties"'.

51. The Human Rights Act 1998 provides a route to relief for an affected person:

7 Proceedings.

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may —

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

[…]

8 Judicial remedies.

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

[…]

The range of potential relief includes the power to make an injunction prohibiting a threatened unlawful act. This power may be exercised in the High Court (section 37(1), Senior Courts Act 1981) or the Family Court 'in all cases in which it appears to the court to be just and convenient to do so'. (See section 31E of the Matrimonial and Family Proceedings Act 1984, as amended, vesting in the Family Court the power to make an order 'which could be made by the High Court if the proceedings were in the High Court'.)

52. McFarlane J in G v N County Council [2008] EWHC 975 (Fam), [2009] 1 FLR 774 drew a comparison between the decision by a local authority to change a care plan under a final care order when the child was placed at home and the removal of a child under an emergency protection order.
53. Drawing on McFarlane J's judgment in G v N and on the 'nothing else will do' reasoning so strongly set out in Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 3 ALL ER 929, [2013] 2 FLR 1075 and Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, Baker J considered in Re DE (A Child) [2014] EWFC 6, [2015] Fam 145, [2014] 3 WLR, [2015] 1 FLR 1001 the scenario in which a local authority gave consideration to changing the care plan for a child already the subject of a final order from placement at home with parents to permanent placement outside the family. The learned judge said this:

[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 In re G (Care: Challenge to Local Authority's Decision) [2003]?2 FLR 42, the local authority must fully involve the parents in its decision-making process.

54. What of the question of the interim removal of such a child, pending court determination of the parents' application to discharge the care order in such circumstances? Baker J set out the following:

[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 section 31 of the 1989 Act: In re LA (Care: Chronic Neglect) [2010] 1 FLR 80. 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 section 33(4) of the 1989 Act, 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.

[36] In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority's removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

55. The well-known interim removal test in Re LA [2009] EWCA Civ 822, [2010] 1 FLR 80 is this:

[A]t an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection.

56. The facts of the case before Baker J in Re DE were that the threatened removal was to have been of a child from his natural parents (both of whom held parental responsibility for him), in whose care he had been placed pursuant to a care order, into foster care with carers who were (presumably) unknown to him. In those circumstances, as set out above, the learned judge was able to conclude that the removal, representing as it did an overt exercise of the local authority's qualified right to 'determine the extent to which a parent […] of the child […] may meet his parental responsibilities for him' (section 33(3), Children Act 1989), could be justified, and so lawful, only if satisfied that such action 'is necessary […] in order to safeguard or promote his welfare' (section 33(4), Children Act 1989). 'Any other removal', the learned judge concluded, 'is prima facie unlawful and an interference of the Article 8 rights of the parents and child'.
57. The facts in the current case are different. The person from whose care the local authority threatens to remove the child, GA, is not a 'parent, guardian or special guardian' and does not hold parental responsibility for the child. Accordingly, absent explicit parental opposition, the local authority is not bound to crosscheck its decision against the requirement of s.33(4) of the Act.
58. Before me, Miss Worsley for the local authority developed this point in two ways. First, she argued that, as GA does not but the local authority does hold parental responsibility, the local authority has the power to make the decision to remove BH. Secondly, while Miss Worsley accepted that the decision must be made - at least on an interim basis - by application of principles of necessity and proportionality, she argued that the facts that GA is not a parent, that the proposed removal is not from the parental home, that the planned placement is with a person already known to the child and that significant direct contact with GA is contemplated, all militate towards a decision that such a move, even on an interim basis, would be proportionate to the risks the local authority seeks thereby to neutralise.
59. It seems to me that one must be careful not to conflate two separate questions. The first is whether the act, injunctive restraint of which is contemplated, represents an interference with the Article 8 right of the child and/or carer. The second question, which comes into play only in the event of an affirmative answer to the first, is whether such interference is in accordance with the law and is otherwise necessary and proportionate in the circumstances. As to that second question, Baker J has determined in Re DE that interim removal from parents who have applied to discharge a care order pending final adjudication of the application will be unlawful 'unless the child's safety requires interim protection'.
60. As to both the first and the second questions, I can see no reason in logic or law to treat someone in the position of GA in any way differently to a parent. Perhaps more importantly, I can see no reason to treat a subject child differently depending simply on (a) whether the carer to whom s/he is securely attached (and with whom s/he undoubtedly has a 'close personal relationship' of 'sufficient constancy and substance' to warrant protection under ECHR) is a birth parent or some other family member, or (b) whether the application ultimately for adjudication is for the discharge of the care order directly (an application a parent is entitled to make) or its discharge indirectly (by virtue, for example, of a successful application, with leave, for a child arrangements order, as a non-holder of parental responsibility is required instead to make). It seems to me that, whether or not there is separately a requirement that a local authority justify its proposed action by reference to s.33(4), the removal of a child from a longstanding family carer is virtually certain to engage the Article 8 rights of both child and carer. Given that conclusion, nor can I see any reason to impose a less stringent test against which to judge a contemplated interim removal than that applicable in the case of removal from a parent.
61. The six-point guidance given by Baker J at paragraph [49] of Re DE, with the express imprimatur of the President of the Family Division, concludes:

(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.

For the reasons set out above, I regard the current situation as directly analogous. Accordingly, I approach this case by considering whether the proposed removal, interfering as it undoubtedly does with the Article 8 rights of both BH and GA, is necessary in order to safeguard her welfare and safety pending final determination of GA's application.

Discussion

62. I quite understand why the local authority is worried about BH remaining in the care of GA. It would have been entirely negligent not to have acted on the obvious concerns emanating from its discoveries in relation to GA's lifestyle and in particular her use of cocaine.
63. Equally, I entirely understand why GA took the steps she did to seek to prevent the removal of BH from her care. Her position is that she never put BH at any risk and that she has left in the (albeit recent) past the behaviours which gave rise to these proceedings.
64. I make no final determination in relation to the local authority's complaints or GA's assertions in response. As to the appropriate long-term placement for BH, I am not currently in a position to decide whether her welfare requires:

a) her remaining in GA's care pursuant to a child arrangements order and, in consequence, the rescission of the local authority's parental responsibility;

b) the local authority to retain its authority to make the ultimate decision in relation to BH's future, in the knowledge that this will involve a long-term move to live with another person (probably, although it is too early to say with certainty or precision, another extended family member); or

c) some other, as yet unidentified, solution.

In due course, with the advantage of full evidence and further assessments, I will make those final decisions.

65. Considering the local authority's evidence and arguments, it is wholly understandable that it should harbour real concerns in relation to the possibility of further drug use and a scepticism as to whether GA would voluntarily give up information which might tend to cast her in a bad light. In passing, I should say that I was not especially impressed with the suggestion that a reluctance voluntarily, and when taken by surprise, to own up to drug use and that a tendency to make admissions which underplayed the true extent of such use, represented evidence of a more deep-seated tendency towards dishonesty with social services. Nor was I much taken with the evidence - or that portion of the available evidence which was made available to and aired before me - of a lack of co-operation or refusal to abide by important pre-agreed rules in relation to association with other adults and choice and use of babysitters. It may be that I hear rather more about these or other matters at the final hearing.
66. I formed a favourable, if necessarily provisional, impression of GA. I did not discern any duplicity in either her expression of shame and regret or her assurances that she will not contemplate any behaviour which could put the placement at risk pending final hearing. My fuller assessment of GA and of her long-term suitability to provide a home to BH which meets her welfare needs will be undertaken at a later date.
67. Ultimately, the case turns on my assessment of the current risk to BH. I formed my own view - which, incidentally accorded entirely with the social worker's concession when pushed on the issue - that, subject to a carefully constructed interim written agreement which is diligently enforced by the local authority, BH will not be at any significant risk of harm in the few months leading up to the final hearing.
68. That written agreement (already concluded by the time of this reserved judgment) is indeed a careful document, including, among other elements, GA's commitment to abstain from the use of drugs or alcohol, to accede to any drug or alcohol testing required of her, to work openly and honestly with professionals and strictly to adhere to a particularised regime in relation to those persons who may spend time with BH, whether with GA or in a caring capacity, whether in the home or elsewhere and whether overnight or not. There will be both pre-agreed and unannounced visits to the home at various different times.
69. It follows that BH's interim removal is not necessary in order to ensure her welfare or her safety; conversely, her separation from GA would - on the local authority's own evidence - occasion significant disruption, distress and, in all likelihood, harm. In those circumstances, removal cannot be proportionate, regardless of the facts that BH would be placed with a carer with whom she is familiar and that she would have ongoing face-to-face contact with GA.
70. In those circumstances, I consider that BH's interim removal by the local authority from GA's care would be unlawful.
71. It is for these reasons that I made an injunction prohibiting the local authority, pending final hearing, from removing BH from the care of GA unless new circumstances demonstrated that BH's welfare required immediate removal.
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