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 human rights of the families. There had been an Emergency protection Order, but the children had been removed by th epolice officer without a warrant under section 48(9).
Held: There was nothing in the Act to require a warrant. The argument on surplusage (that section 48(9) would otherwise serve no purpose) failed because the section was intended to address a particular need to have authorised entry to premises.
The police officer had however acted outside his powers in purporting to execute the Emergency Protection order. It was not for him to do so. The appeal by the local authority succeeded, but not that of the police constable, though no personal blame attached to the officer.
Dyson LJ explained the differences between the powers under sections 44 and 46: ‘In my judgment, the statutory scheme clearly accords primacy to section 44. Removal under section 44 is sanctioned by the court and it involves a more elaborate, sophisticated and complete process than removal under section 46. The primacy accorded to section 44 is further reinforced by section 46(7) and 47(3)(c). The significance of these provisions is that they show that it was contemplated by Parliament that an EPO may well not be in force when a removal is effected under section 46, and that removal under section 46 is but the first step in a process which may later include an application for an EPO . . I would therefore, hold that (i) removal of children should usually be effected pursuant to an EPO, and (ii) section 46 should be invoked only where it is not practicable to execute an EPO. In deciding whether it is practicable to execute an EPO, the police must always have regards to the paramount need to protect children from significant harm.’
Judges:
Thorpe, Dyson, Lloyd LJJ
Citations:
[2005] EWCA Civ 1173, Times 19-Oct-2005, [2006] 1 FLR 342, [2006] 1 WLR 375
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Venema v The Netherlands ECHR 17-Dec-2002
A young child aged 11 months was separated from her mother because of fears that the mother was suffering from Munchausen syndrome by proxy and would injure her. The child was returned five months later, following medical reports which found that . .
Cited – 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 by:
Cited – A v East Sussex County Council and Chief Constable of Sussex Police CA 2-Jul-2010
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 . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.
Children, Police, Human Rights
Updated: 04 July 2022; Ref: scu.231044