England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2016

 


Mr Justice Keehan :

Introduction

1. LW was born on 16 January 2016. She is 12 days old. Her mother is the First Respondent, LM. Her father is the Second Respondent, DW.
2. On 28 January 2016 the local authority, Nottingham City Council, issued care proceedings in respect of LW on the basis that there were reasonable grounds to believe that she was or would be at risk of suffering significant harm if she were placed in the care of her mother and/or her father.
3. The local authority sought an interim care order on the basis of a care plan that LW would be placed with foster carers. Subject to concerns about the timing of the application, the children's guardian supported the application of the local authority.
4. The mother and the father opposed the application for an interim care order and for their young baby to be placed in foster care. They each took issue with some aspects of the local authority's threshold document, but both effectively conceded that the interim threshold criteria of s31(2), read with s38(1), of the Children Act 1989 were satisfied.

The Law

5. When considering the application for an interim care order I have well in mind that the court's paramount consideration is the welfare best interests of the child: s1(1) of the Children Act 1989. Further I have regard to each of those factors set out in the welfare checklist of s1(3) of the 1989 Act.
6. I have taken account of the Article 6 and Article 8 rights of the child and of the parents. I remind myself, however, that where there is a tension between the Article 8 rights of the parent, on the one hand, and the Article 8 rights of the child, on the other, the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR 210.
7. In relation to the test to be applied to sanction the removal of a child at, or soon after, birth from a parent, I have had regard to the decision of the Court of Appeal in Re L-A [2009] EWCA Civ 822, [2010] 1 FLR 80, cited with approval the decision of the Court of Appeal in Re K and H [2007] 1 FLR 2043, at paragraph 16 when it was said that:

"At an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection"

Background

8. The mother has an older child, B. He was born on 1 October 2013 and is 2 years of age. His father is AH. On 20 March 2015 the mother and B moved to live with the maternal grandparents because of the risks to B arising from the violent relationship between the mother and DW. The local authority issued care proceedings in respect of B in May 2015. The basis of the application was the local authority's assertion that she was suffering significant emotional harm in the care of the mother and DW and was at risk of suffering significant physical harm as a result of their drug taking and domestic violence. On the 14 May at the hearing of the local authority's application for an interim care order the mother consented to B being accommodated by the local authority pursuant to s20 children Act 1989. He remains placed with the maternal grandparents.
9. The local authority had been involved in the lives of the mother and B for some 2 years. The social workers knew the mother was pregnant with LW by October 2015. They knew her expected date of delivery was some time in January.
10. A birth plan was prepared. It is not, however, worth the paper it is written on because, as it now transpires, it was ignored by everyone connected with the local authority.
11. The hospital, where LW was born on 16 January, notified the social workers of her birth on Monday 18 January.
12. It then took the social workers until 21 January to place the papers before the local authority's solicitors for consideration of the issue of care proceedings. It took a local authority solicitor until 28 January to issue care proceedings and to apply for an 'urgent' interim care order.
13. The local authority's application, interim threshold criteria and social work statements in support were not served on the parents' respective solicitors nor on the children's guardian and her solicitor until about 12.30pm on 28 January. The case was called on before me at 3pm, there being no justices, district judge or circuit judge available to hear the matter at such short notice.

The Local Authority's Response

14. I ordered the Director of Children's Services for Nottingham City Council and the principal solicitor to each file and serve statements setting out why an application for an interim care order had not been made more timeously. I further directed that copies of those statements be emailed to my clerk for my attention.
15. The relevant extract from the statement of the Head of Service for Children's Social Care reads as follows:

"….I would like to offer my sincere apologies to the court for the delay in issuing proceedings. I understand this caused a number of challenges for those responsible for allocating court time and to all the parties involved who represent the parents and others involved in this case.

In this particular case, I understand however that there had been ongoing communication with the parties legal representatives about the Local Authority's intention to issue proceedings.

I believe all parties worked on the premise that issuing should take place once all the paperwork including statements from health colleagues had been submitted and the social worker statement had been amended to include the new information from the hospital in relation to father's alleged overdose, the withdrawal symptoms of baby and the anonymous referral received following LW's birth. This contributed to the delay in issuing.

I fully accept that the ideal course of action would have been to issue proceedings as soon as possible after the first working day following the birth, namely the 18^th January and the Local Authority could have filed a statement making it explicit that further information had come to light which required immediate investigation and seek the court's permission to submit an updated statement once these investigations had taken place. Again, the social worker statement could have included information reported by health colleagues, making it clear that health colleagues would be required to submit statements as soon as possible following the lodging of the care application.

Furthermore, the Local Authority will ensure that team secure emails are checked on a frequent basis by the team's Business Support Officer or the team's duty social worker so they can alert managers when important documents have been received. This will prevent documents "sitting in the inbox" when social workers/ case holders are absent from work due to sickness or annual leave.

Again, please accept my apologies for this delay. The staff involved in this matter take their roles very seriously and did work hard to produce all the materials required by the court, as expeditiously as possible. However, we have all learnt from this experience and will ensure that issuing is done in a timely manner. The staff involved also offer their sincere apologies for the delay and did not wish to cause the court and parties any offence. They were working hard to gather all the necessary evidence and ensure all parties had full and up to date records of recent events. Again the team recognises the need to issue proceedings as soon as possible following the birth of the baby and will ensure this message is shared across their team…..

….LW's half-brother is currently subject to care proceedings on the basis of concerns arising from domestic violence. The pre-birth assessment of LW concluded that the risks remained as the mother had not changed or accepted the concerns, but instead minimised the domestic abuse and impact this would have on her as yet unborn child's development and safety.

A Legal Planning meeting was held on the 16^th December 2015 chaired by a Children's Social care service Manager with legal advice and support from the Team leader of the Local Authority's Children and Adults Legal Team. The decision to issue proceedings was then ratified by me as Head of Service for Children's Social Care.

It would be usual practice to issue proceedings on the day of birth and I have investigated this matter to try and ascertain why in this case, proceedings were not issued until the 27^th January, 8 working days following LW's birth. I met with the Team Manager, SD, and her covering Service Manager on Friday 29^th January and with the Children and Adults Legal Team Leader on Monday 1^st February in order to review events and determine reasons for this delay. I set out below the key events as they unfolded and which contributed to the delay in issuing proceedings…."

16. The relevant extract from the statement of the Legal Services Manager reads as follows:

"On 19^th January 2016, Legal Services were updated by the social worker following her hospital visit to see mother, father and the baby. The social worker advised there had also been an anonymous referral to the hospital made the previous evening stating that the mother had used opiates throughout her pregnancy. The hospital had also expressed concerns about the baby's health and they would be undertaking a Rivers chart assessment as they were concerned the baby was experience withdrawal symptoms. I refer to the statement of TN for an explanation regarding what the Rivers Chart assessment is.

In light of the recent information, the social worker needed to update her statement and this was sent to Legal Services on 21^st January 2016. By this point there were and had been some difficulties between the social worker and hospital in obtaining medical information regarding LW's withdrawal and also the father's overdose. Legal services confirmed that they would assist in seeking this information from the hospital.

On Friday 22 January the hospital emailed over a midwife's report to the social worker's team secure email. Unfortunately as the social worker was off sick on Monday 25^th January, this statement was not picked up by the social worker until Tuesday 26^th January, when it was forwarded on to Legal Services. Unfortunately the allocated solicitor was not in work on the 26^th as she works part-time so the first that the solicitor saw of both the midwife's report and the final paperwork from the Social Worker (the chronology) was on Wednesday 27^th January, when the matter was issued. As the hospital was not pressing for discharge until the end of the week the Court were notified with the application that the matter could wait until Friday 29^th January for listing if that would assist the Court…..

…the final updated social worker documents were received by Legal on 26^th January and the case was issued with the court during the afternoon of 27^th January and the court was advised that a hearing the following day was not necessarily needed and the matter could wait until the day afterwards, namely Friday 29 January if that would assist the Court. In the meantime the hospital emailed over further health evidence, a second midwife report and chronology, once again to the chronology, once again to the social worker until the morning of 28^th January and then passed on to Legal Services.

The court duly issued the matter during the afternoon of 27^th January and listed the case to be heard before a District Judge at 2pm on Thursday 28^th January 2016. The allocated solicitor left instructions with the team legal secretary to inform CAFCASS and also provide them with copies of the local authority application and also to counsel who would be representing the Local Authority on 28^th January.

Unfortunately, the team secretary did not file and serve the Local Authority's application on the Parent's solicitors at the same time. I apologise on behalf of the Local Authority for their regrettable oversight. To give this error some context, due to an unexpected absence and vacancies within the secretarial team, the secretary was working on her own that day in a secretarial team which usually consists of four secretaries and was inundated with work. She is very sorry for the problems her oversight caused.

It is also further regrettable that it was not noted that the parents' solicitors had not been served with the Local Authority's application until late in the morning on 28^th January. It was immediately rectified but unfortunately this was less than two hours before the hearing. Once again I apologise on behalf of the Local Authority for this delay. The Local Authority has been made fully aware of the dissatisfaction expressed by Mr Justice Keehan who heard the matter on 28^th January and has not taken this matter lightly. There has been a full review into the circumstances surrounding the issue of this matter both by legal Services and also Children's Services.

It is accepted that there has been a delay in the issuing of this matter and no disrespect was intended to the court and parties. It is hoped by providing a chronology in respect of what has happened in the conduct of the matter since the birth of LW that Mr Justice Keehan and the court can be reassured that this matter was continually worked and as a result of the critical new information and concerns around events that took place around the birth of LW involving the father's suspected overdose and also the anonymous referral that the mother possibly had been using opiates through pregnancy that such concerns had to be rigorously investigated and also further evidence adduced in order for the Local Authority to rely on this, particularly, as the Local Authority's Care Plan was to seek an Interim Care Order with removal of LW from her parents' care.

In addition, the Parties solicitors were updated as regards progress with the matter. Sadly for LW the hospital had concerns that she maybe experiencing withdrawal symptoms and the hospital were obviously keen to keep her in hospital for monitoring. LW also suffered a seizure on 25^th January. Therefore, any delay in the matter being heard before the court had thankfully not caused any inconvenience to the hospital.

Nevertheless in reviewing this matter I accept that should this scenario happen again in the future the appropriate course of action would be for the matter to be issued at the earliest possible opportunity following the baby's birth. There would then be liaison with the court around further evidence being sought by the Local Authority to assist the court as to how urgently the matter needed to be listed, particularly as in this scenario the Local Authority were seeking an interim Care Order and removal which was and is still to be contested by the parents. The Team Leader for the Children and Adults legal team will ensure that the team is fully aware of the need to take this approach in future cases…."

17. I am grateful to the Head of Service for Children's Social Care and to the Legal Services' Manager for inquiring into and explaining the circumstances which led to the unacceptable delay in this local authority making the application for an interim care order in this case. I acknowledge their apologies. I am pleased to be assured that lessons have been learned and the fundamental and egregious errors made in this case will not be repeated. The consequences of these failures are very serious.

Discussion

18. Notwithstanding the foregoing, I regret the explanations given do not provide a wholly satisfactory or adequate account for the serious errors of the local authority. I come to that conclusion because each of them appear to endorse practices or procedures which are simply flawed. I consider these matters in paragraphs 30 to 32 below.
19. The parents wished to contest aspects of the interim basis of threshold and the plan for LW to be removed to foster careers under an interim care order. They each wished to challenge the social work evidence in cross examination and each wished to give evidence to the court. That was an entirely reasonable course to adopt. The time estimate for a contested hearing was 1 day.
20. Most unfortunately no circuit judge, or district judge or lay bench could accommodate such a fixture until some days later.
21. The hospital could not, and would not, accommodate LW for that period of time. The parents had made clear that they would not agree to their baby being accommodated pursuant to s 20 of the 1989 Act The maternal grandmother had indicated that she was unable to care for both B and for LW.
22. In light of the removal of B from the care of his mother, the allegation that the mother had abused methadone during her pregnancy, that she had failed to engage with any ante natal care and the fact that the father had taken a drugs overdose, days before LW's birth, which caused him to collapse and necessitated his admission to hospital, I concluded, on an interim basis, that I could not risk LW being placed in the sole and unsupported care of the mother and/or the father. There were, I was satisfied, reasonable grounds for believing that she would suffer and/or was at risk of suffering significant harm in the care of one or both of her parents.
23. Accordingly, notwithstanding the objections of the parents, but with the support of the children's guardian, I had no choice but to make an interim care order and to approve the plan to place LW in foster care pending a contested hearing. Further enquiries have to be undertaken by the local authority and the children's guardian to determine whether arrangements can be put in place to enable LW to be cared for by one or both of her parents.
24. In an attempt to ameliorate the concerns of the parents at the removal of their baby daughter into foster care, I directed that the local authority should facilitate supervised contact between LW and her parents each weekday between now and the contested hearing.
25. I was compelled to take this course in the welfare best interests of LW whose welfare is, of course, the court's paramount consideration.
26. The hearing before me may have resulted in an order that best protected the child, but it could hardly be categorised as a fair hearing so far as the parents are concerned. The process was arguably not Art 6 compliant.
27. The children's guardian was placed in an equally invidious position. She was appointed immediately after the issue of proceedings on the morning of 28 January. She had only had the opportunity to make the most rudimentary enquiries. She, too, was compelled to make a recommendation to the court on the basis of limited and challenged evidence.
28. Save for the making of a holding order, the hearing on 28 January, was, in my judgment, wholly ineffective. It was such because of the egregious failures of the local authority. In the premises, I had no hesitation in ordering the local authority to pay the costs of the publicly funded respondents.

Local Authority – Failings and Poor Practice

29. In my experience the errors made in this case are not an isolated example nor is the factual matrix of this case either unique nor even exceptional: on the contrary this case is fairly typical of the type of case in which local authorities propose or plan to seek the removal of a baby at birth. Thus, what principally concerns me is that such fundamental and egregious errors should be made in, what may colloquially be termed, 'a run of the mill case'. In paragraph33 below, I consider what steps should be taken by a local authority when it plans to seek the removal of an unborn child immediately or shortly after his/her birth.
30. Before I do so, I wish to make certain observations on the flawed approach apparently endorsed by both the senior children's services manager and the local authority's senior lawyer in this case. First, both made reference to the willingness of the hospital to keep the baby as an in patient pending the issue of care proceedings. Plainly the period of time for which a hospital is prepared to keep a new born baby as an in-patient, either on medical or welfare grounds, maybe a material consideration for a local authority on the timing of the making of an application for an interim care order, but must not place too great a reliance on these indications or assurances. The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order. The following should always be borne in mind:

a) a hospital may not detain a baby in hospital against the wishes of the mother or a father with parental responsibility;

b) the capability of a maternity unit or a hospital to accommodate a healthy new born child may change within hours, whatever the good intentions of the unit or hospital, depending upon the challenging demands it may be presented with;

c) the ability to invite the police to exercise a Police Protection Order, pursuant to s.46 of the 1989 Act or for a local authority to apply for an Emergency Protection Order, pursuant to s.44 of the 1989, are, of course, available as emergency remedies,

d) but such procedures do not afford the parents nor, most importantly, the child, with the degree of participation, representation and protection as an on notice interim care order application;

e) the indication of a maternity unit as to the date of discharge of a new born baby should never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child.

31. Second, where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither "usual" nor "ideal" practice for an application for an interim care order to be made on the day of the child's birth, rather it is essential and best practice for this to occur.
32. Third, once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently.
33. The local authority should have adopted good practice and the following basic, but fundamental, steps should have been taken:

a) The birth plan should have been rigorously adhered to by all social work practitioners and managers and by the local authority's legal department;

b) A risk assessment of the mother and the father should have been commenced immediately upon the social workers being made aware of the mother's pregnancy. The assessment should have been completed at least 4 weeks before the mother's expected date for delivery. The assessment should then have been updated to take account of relevant events immediately pre and post delivery which could potentially affect the initial conclusions on risk and care planning for the unborn child;

c) The assessment should have been disclosed, forthwith upon initial completion, to the parents and, if instructed, to their solicitors to give them an opportunity, if necessary, to challenge the assessment of risk and the proposed care plan;

d) The social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than 7 days before the expected date of delivery. The legal department must issue the application on the day of birth and, in any event, no later than 24 hours after birth (or as the case may be, the date on which the local authority is notified of the birth);

e) Immediately upon issue, if not before, the local authority's solicitors should have served the applications and supporting documents on the parents and, if instructed, upon their respective solicitors.

f) Immediately upon issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could have provided.

34. If these steps had been followed in this case, unnecessary delay and procedural unfairness would have been avoided.

Conclusions

35. The local authority was inexcusably late in making an application for an interim care order. The consequences of this contumelious failure were that:

i) The parents' legal representatives were served with the application and supporting, albeit deficient, documentation only some 2-3 hours before the hearing;

ii) The court was unable to accommodate a 1 day contested hearing for an interim care order before a circuit judge, a recorder or a district judge until some days hence;

iii) The parents legitimately wished to have a fully contested interim hearing with the benefit of oral evidence to cross examine the social worker and the guardian and to enable the parents to give oral evidence;

iv) The hospital was ready to discharge the child and, for wholly understandable reasons was unwilling and unable to care for the baby for a further prolonged period;

v) The stance of the hospital and the principal, but unchallenged, evidence of the local authority was that the baby would be at risk of suffering significant harm if she were discharged into the care of either the mother and/or the father;

vi) Accordingly and acting in the best welfare interests of the baby, as advised by the children's guardian, the court had no choice but to make an interim care order in favour of the local authority on the basis of a plan to place the baby with foster carers; but

vii) On the basis that the local authority, at whatever cost and inconvenience to itself, would arrange contact to take place five times per week between the child and her parents.

36. I am in no doubt that the parents in this case have been done a great dis-service by this local authority. It may well be that the outcome would have been the same whatever the length of notice that they and their respective legal advisors had had of this application; that is not the point. It is all a question of perceived and procedural fairness.
37. The actions of this local authority, in issuing an application for an interim care order so late in the day, have resulted in an initial hearing before the court which, I very much regret, is procedurally unfair to the parents. Of equal importance, it is unfair to the children's guardian who was only appointed on the morning of the issue of this application. The fault for this unfairness lies squarely at the door of this local authority.
38. I am in no doubt that if this application for an interim care order had been issued timeously by the local authority then the hearing before me on 28 January 2016 could have been an effective contested hearing.
39. In the premises I have no hesitation in concluding that the costs of this abortive hearing should be borne by the local authority. Accordingly I shall order the local authority to pay the costs of all of the respondents to be assessed if not agreed.
40. This local authority is, I am told and accept, a 'serial offender' in issuing late and 'urgent' applications for care proceedings and/or interim care orders in respect of new born babies. Save in respect of clandestine pregnancies and/or births, I simply do not understand why this local authority issues proceedings so late and so urgently. In this case it was a most spectacular and contumelious failure.
41. The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child's birth.
42. Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority's failure to act fairly and/or timeously will be condemned in an order for costs.
43. In this case the local authority wholly and unreasonably failed the child, her parents and the children's guardian.