In this post we shall look at the ways the state is allowed to take a child away from his/her parents BEFORE all the relevant evidence has been seen and heard by a Judge at court hearing.
If you agree to your child being removed from your care, your child will be accommodated by the local authority under section 20 of the Children Act 1989.
If you DO NOT AGREE, there are only two ways your child can be taken away without your agreement:
- by the police using their powers under section 46 of the Children Act 1989, for a maximum of 72 hours only
- by an order of the court
Taking children away from their parents before all the evidence has been looked at is obviously one of the most difficult and controversial issues in care proceedings.
This is a really helpful post by suesspicious minds: ‘Social Services are asking me to put my child in care and they want me to do it now’.
When is it right to remove a child on a ‘interim basis’ i.e. before all the evidence has been heard and considered by the Judge at a Final Hearing?
These cases are often very finely balanced – if a child is taken from home and goes into foster care for a few months and then is returned home, this obviously has the potential to cause the child (and the parents) a lot of emotional upset. However, if a child isn’t removed from home when he should have been, the child could be left in a dangerous situation for a number of months while a final hearing is arranged at court.
So this issue has generated a lot of discussion and case law, particularly as Local Authorities reacted to the tragic death of Peter Connelly in 2007 and were keen to intervene to prevent another child dying or being seriously injured.
Removal under an Interim Care Order – ICO
The first and important thing to be very clear about – the court CANNOT agree with a LA’s plan to remove a child from home before the final hearing under an ICO, unless it determines an interim care order is lawful in the first place. Interim care orders come under section 38 of the Children Act 1989. The court must have ‘reasonable grounds’ to believe that section 31(2) is satisfied i.e. that the child has suffered or is at risk of suffering significant harm.
We have examined the concept of ‘significant harm’ in more detail in another post.
If the court does find significant harm has happened or is likely to happen, it then goes on to the second stage; is removing the child the right thing to do now?
This issue has generated a lot of case law. The case of Re GR in 2010 pulled together what the case law was saying about when interim removal was appropriate. Another useful case is the Court of Appeal’s decision in K (Children) in September 2014.
We can summarise:
- separating a child from his parents at this stage in the proceedings is a very serious matter and must only be contemplated if the child’s safety demands immediate separation;
- ‘safety’ encompasses a wide range of issues, including physical and emotional; and
- these safety issues must be identified with clarity so the evidence relating to those issues can be properly analysed (see K (Children) para 34, 36);
- removing the child from his parents must be proportionate to the risk of harm to which he will be exposed to if he goes home;
- Whether or not a decision is proportionate is decided by cross checking what other options are available; is a ‘more proportionate’ option than separation available? (see K (Children) para 37);
- the court must be wary of being taken over by the perceived ‘urgency’ of a situation at the expense of taking the necessary time to make sure the relevant issues are identified (see K (Children) para 30).
- that the decision taken by the court on an interim care order application must be limited to issues that cannot wait for until the Final Hearing; the court must NOT attempt to resolve issues which are going to be argued at the Final Hearing.
The reason that the court must not try to look at the wider issues in the case at an interim hearing is because it just wouldn’t be fair to anyone to do so. Interim hearings are usually arranged urgently and you will be lucky to get any more than a day of the court’s time to hear them. There simply won’t be time to give all the issues the attention they deserve. However, the court can’t ignore likely future outcomes and when considering what is in a child’s best interests must take account of all the circumstances and will concern itself with the reality of the child’s situation.
Proportionality is a key concept in family law, arising from Article 8 of the European Convention. Interfering with a child or parent’s right to a family life can only be allowed if it is in accordance with the law, necessary and proportionate.
Therefore, if the LA wanted to take a child from home at an interim stage because there were concerns about an untidy house or couple of incidents of shouting, that almost certainly would not be considered proportionate. But if the child had a broken arm and no one could explain how it happened, interim removal almost certainly would be considered proportionate.
What happens next?
The Court of Appeal reminds us that even when the court has decided it is right to make an interim care order it must think about what is going to happen to the child after the order is made – where is the child going to live? What kind of contact will the parents have? This evidence is ‘bound to be relevant to the welfare analysis and proportionality evaluation’.
- See the case of L (A Child)  for further consideration of when a removal of a new born baby is lawful. In this case, the baby was returned to his mother’s care pending final hearing.
- Here is an example of where the court allowed an appeal against an interim removal because of very serious irregularities in the procedure and a failure by the Magistrates to properly consider the legal test.
- If you want to read more about the impact of the ECHR on family law, here is a useful article.
Emergency Protection Orders
There is obviously going to be some overlap between cases where the LA apply for removal under an EPO or an ICO.
One important difference between the two is that an EPO can only last for 8 days when it is first made and then can only be extended for a further 7 days. Interim care orders can last for a lot longer. See this article by Andrew Pack about how time limits for ICOs have been extended by the Children and Families Act 2014.
EPOs should only be used when a situation is urgent. It is essential that courts consider and apply the guidance in the case law about how to approach EPOs, given the serious consequences of making such an order.
See re X (Emergency Protection Orders)  2 FLR 701. Here the Judge referred to the guidance of an earlier case and made it clear this guidance was ‘essential reading’ for any court making a decision about an EPO.
See paragraph 64 of his judgment onwards:
Very serious reasons needed for an EPO
- An EPO, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. The court shouldn’t make an EPO unless its necessary and no other less radical form of order will keep the child safe; ‘imminent danger’ to the child must be ‘actually established’.
- Both the local authority and the court have a very serious responsibility to approach every application with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.
The EPO must be a proportionate response to the concerns about the child
- Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.
- If the real purpose of the local authority’s application is to enable it to have the child assessed then they should think about making an application for a Child Assessment Order under section 43 of the Children Act 1989.
- No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte [without notice to the other side] application the court should think about making an order for only a very short time.
Proper evidence is needed to justify an EPO and parents need to know what it is
- The evidence in support of the application for an EPO must be full, detailed, precise and compelling. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
- Save in wholly exceptional cases, parents must be told that the matter is going to court and given advance warning of the evidence the LA will rely on.
- Where the application for an EPO is made [without notice] the local authority must make out a compelling case for applying without first telling the parents notice. An application [without notice] will usually only be considered OK if the case is genuinely one of emergency or other great urgency.
- The evidential burden on the local authority is even heavier if the application is made [without notice]. Anyone who applies to the court without the other side knowing about it, have a duty to be honest and open about all the relevant circumstances known to them.
- Section 45(7)(b) of the Children Act 1989 permits the [court] to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the [court].
- The mere fact that the [court is under obligations to record the evidence] is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made [without notice] are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the [court] either before or during the course of the hearing; and (ii) what legal authorities were cited to the [court]. The LA’s lawyers should act quickly to provide the parents or their lawyers copies of any material considered by the court so the LA lawyer should make a very good note of the proceedings.
Is there an alternative to an EPO?
- Section 44(5)(b) of the Children Act 1989 sets out that the LA can only make decisions about the child if it is ‘reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the LA shall remove children from their parents under s 44(4)(b)(i) ‘only … in order to safeguard the welfare of the child’.
- The local authority must think very hard about whether or not removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The [court] decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it is a very good idea for all LAs to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.
LA needs to keep the case constantly under review and arrange proper contact.
- The LA has a positive duty under Article 8 of the ECHR to keep under review any decision to keep a child out of his parents care and to think about how they could be reunited. Secion 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to [the local authority] that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.
- Section 44(13) of the Children Act 1989 requires the local authority, subject to any direction the court makes under s 44(6), to allow a child who is subject to an EPO ‘reasonable contact’ with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.
For information about what the courts expect from practitioners at an urgent hearing and how court bundles should be prepared, see this guidance from Cobb J in 2014.