QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| In the matter of unborn baby M R (on the application of X and Y)
|- and -
|GLOUCESTERSHIRE COUNTY COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Claire Rowsell (instructed by the local authority solicitor) for the defendant (local authority)
Crown Copyright ©
Mr Justice Munby:
"[S] suggested a plan for discharge which would entail baby [M] and his parents going to a residential Assessment Centre … for 3 months immediately after discharge [from hospital]. The only problem would be if the baby was born early and we had to wait for a vacancy … In this event it was suggested that the baby would go to a foster home. This would only be for a matter of days and then only if the hospital needed to discharge him. There was also the question of funding which was not yet secured.
[X] and [Y] were in agreement with the plan for the residential assessment but were not happy for the baby to go into foster care. They agreed to talk it over at the weekend and give us their answer on Monday.
(However [X] phoned the next day to say that they agreed to the plan including the possibility of foster care which they hoped would be no longer than 7 days.)"
The judicial review proceedings
"1 This application is to be issued in and is to remain in the Administrative Court but is to be reserved to a nominated judge who is also a judge of the Family Division (Munby J if available).
2 The claimants' applications for permission and urgent interim relief are to be listed for oral hearing before Munby J on Friday 11 April 2003 marked not before 11.30am.
3 Whether or not the defendant files an acknowledgement of service or any evidence the defendant should file with the court no later than 10am on Friday 11 April 2003 (by fax to [number] addressed to the Clerk to Munby J) a brief position statement indicating (i) whether or not its care plan remains that decided at the Core Group on 6 March 2003, (ii) if not, why not, (iii) whether a place is available at the Assessment Centre … and if so from what date, and (iv) whether or not it is its intention either to apply for an emergency protection order or to commence care proceedings (and, if so, when and to which court).
4 The Administrative Court Office is immediately to notify both the claimants and the defendant of the terms of this order (in the case of the claimants by telephone and e-mail and in the case of the defendant by telephone and fax).
5 Liberty to either the claimants or the defendant to apply to Munby J (by fax to [number] or by telephone to [number]) to vary or discharge this order."
i) The claimants' application for permission to apply for judicial review.
ii) The claimants' application for urgent interim relief to prevent the local authority applying to the Family Proceedings Court. During the hearing X clarified for me the relief they were seeking: an injunction to prevent M being removed; alternatively, an order requiring the local authority to set up a residential assessment as soon as possible.
iii) The defendant's application that the entire proceedings be dismissed, essentially on the grounds that they were wholly lacking in any even arguable merit and were in any event misconceived.
Decision – the narrow ground
Decision – the wider ground
"Just as applications for judicial review are to be deprecated where there are pending care proceedings, so are separate applications under sections 7 and 8 of the 1998 Act in such cases. The proper forum for litigating these issues will almost always be the court – whether the FPC, the County Court or the High Court, as the case may be – where the care proceedings are being tried."
"… the guardian's issue of proceedings for judicial review of the local authority's decision to match C with Mr and Mrs A was, in retrospect, misguided. Even had the proceedings been well-founded in law, the proper forum was to challenge the care plan in the care proceedings. There the full merits – as opposed to the bare lawfulness – of the decision fell for debate … I hope that no court is again required so painstakingly to consider the lawfulness of a decision when the real issue is as to whether it best serves the child's interests."
i) that the relevant court or tribunal lacks the jurisdiction to hear the proposed proceedings; or
ii) that the proceedings are vexatious or constitute an abuse of the process of the court; or
iii) in a case where proceedings are already pending in one court or tribunal and the application is to restrain the institution of further proceedings in a different court or tribunal, that there is a real risk of serious prejudice to the person seeking to restrain the further proceedings if they are allowed to go ahead at the same time as the existing proceedings.
i) The Administrative Court Office should upon receipt of the papers immediately issue the proceedings and then immediately place the file before a nominated judge of the Administrative Court who is also a judge of the Family Division or, if no such judge is immediately available, before the President of the Family Division.
ii) The judge before whom the file is placed should give immediate directions, with a view, where appropriate, to the case being 'fast-tracked' and disposed of as quickly as possible. I have in mind, for example, that, as in the present case, it may be appropriate – indeed vital – to dispense both with the acknowledgement of service and with any preliminary decision by the judge on the papers. Typically it will be appropriate – often it will be necessary – to proceed immediately to an oral hearing at which the judge (who should always be a nominated judge of the Administrative Court who is also a judge of, or who has previous experience of sitting in, the Family Division) can hear and determine both the claimant's application for permission to apply for judicial review and any application for interim or other relief.
i) The fact that I would in any event have dismissed this application for judicial review on the merits does not, of course, mean that the local authority will necessarily succeed in the Family Proceedings Court. It may. It may not. The issue for the Family Proceedings Court (or the Family Division) will be quite different from the issue that alone concerned the Administrative Court.
ii) At the risk of unnecessary repetition I emphasise that the removal of a child from his mother at or shortly after birth is a draconian and extremely harsh measure which demands "extraordinarily compelling" justification. The fullest possible information must be given to the court. The evidence in support of the application for such an order must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
iii) Save in wholly exceptional cases parents must be given adequate prior notice of the date, time and place of any application by a local authority for either an emergency protection order or an interim care order. They must also be given proper notice of the evidence the local authority is relying upon.
iv) If a baby is to be removed from his mother one would normally expect arrangements to be made by the local authority to facilitate contact on a regular and generous basis. It is a dreadful thing to take a baby away from his mother: dreadful for mother, dreadful for father and dreadful for the baby. If the state, in the guise of a local authority, seeks to intervene so drastically in a family's life – and at a time when, ex hypothesi, its case against the parents has not yet even been established – then the very least the state can do is to make generous arrangements for contact. And those arrangements must be driven by the needs of the family, not stunted by lack of resources. Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. And local authorities must be sensitive to the wishes of a mother who wants to breast-feed and must make suitable arrangements to enable her to do so – and when I say breast-feed I mean just that, I do not mean merely bottle-feeding expressed breast milk. Nothing less will meet the imperative demands of the Convention. Contact two or three times a week for a couple of hours a time is simply not enough if parents reasonably want more.
v) I would expect the court in the present case to want to probe (a) the reasons for the seeming change in the local authority's plans between 6 March 2003 and 27 March 2003, (b) the precise details of the foster placement proposed for M, (c) the details of the contact arrangements proposed by the local authority and (d) the details, likely start dates and likely duration of the various assessments which are planned.
vi) The court may also wish to consider whether the fact that X is a Schedule 1 offender is, of itself, any justification for the view that M is at risk of sexual abuse. I appreciate that I have only a comparatively superficial knowledge of the facts of this case, and that there is much known to the local authority of which I am wholly ignorant, but I have to say that X's apparent predilection for under-age teenage girls does not of itself suggest to me that his baby son is at risk of sexual abuse.