A appealed against the dismissal of her claim for damages under the 1998 Act after the defendants had taken action anticipating possible abuse of her baby child. The baby had been returned after the suspicions were allayed. She complained that the respondents had acted under section 46, avoiding the need to test their suspicions at court.
Held: The appeal failed. The judge acted properly on the evidence before him and assessed the evidence on the basis of what the decision makers knew (and reasonably should have known) at the time that they had to make decisions. In the light of heightened public concerns about child protection it is not right to criticise ESCC for taking what with the benefit of hindsight might appear an unduly cautious or even heavy approach. ESCC were entitled to conclude that the exercise of statutory powers was necessary to protect B.
Though it was beyond argument that the respondents should have taken the matter to court, the mother was threatening to take the child home immediately, and the officer had advice from a consultant paediatrician which he could not ignore.
Hedley LJ said: ‘child protection is just that. It is protection from the consequences of perceived risk. There will be cases, as here, where either the risk was incorrectly perceived or did not eventuate. That of itself does not mean that protective measures were wrongly taken. It merely illustrates the price that sometimes has to be paid for having a child protection system and it is unfortunate that it was exacted from this appellant and her son. Nevertheless, because child protection powers can have draconian consequences, it is essential that they are exercised lawfully and proportionately . . child protection only comes at a cost: to an innocent parent who is subject to it based on emergency assessment of risk and to public authorities who have had to account in a judicial setting for their exercise of power. It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state.’ and
‘Even in an emergency it is desirable, where possible, to work in partnership with a parent. Parents can with careful and sympathetic explanation be brought to agree to regimes of supervision, or to the child remaining in hospital or even to voluntary accommodation under Part III of the Act for a brief period. Where parents have access to a solicitor (particularly where, as here, he or she is available), then the solicitor should be apprised of the local authority’s concerns and proposals and then be invited (if the solicitor thinks it proper to do so) to give advice to the parent. Even where emergency powers are obtained under Section 44 or exercised under Section 46, least interventions are best. For example the police have power to prevent a removal from hospital. In the circumstances of this case it would have been surprising had the hospital if pressed refused to keep the child for an extra two days. The removal of the child to a known destination (e.g. a relative) is to be preferred to removal to a stranger. If, however, there is removal to a stranger, the parent should, in the absence of good reason (e.g. abusive or irrational behaviour) be informed of the fact and be allowed to pass relevant information to the carer and speedy arrangements be made for contact. ‘
Carnwath, Jackson LJJ, Hedley J
[2010] EWCA Civ 743, [2011] 1 FCR 116, [2010] Fam Law 924, [2010] 2 FLR 1596
Bailii
Human Rights Act 1998 7, Children Act 1989 46
England and Wales
Citing:
Approved – In re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
Approved – X Council v B (Emergency Protection Orders) FD 16-Aug-2004
Munby J reviewed the grant of Emergency Protection Orders, and summarised the applicable law: ‘The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
(i) An EPO, . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Lists of cited by and citing cases may be incomplete.
Children, Police
Updated: 31 October 2021; Ref: scu.420205