Langley & Ors v Liverpool City Council & Ors

A constable may exercise the police protection power under section 46 of the Children Act 1989 while an emergency protection order is in force. Where the officer knows of the order, however, the child should ordinarily be removed by social workers executing it. Police removal requires compelling reasons and should occur only where execution of the order is impracticable, always giving priority to protection from significant harm.

Removing a child unlawfully interferes with family life contrary to article 8 where the interference is not in accordance with law. The officer’s good faith or a proportionate response to the perceived danger does not cure that defect. A court reviewing a decision to seek emergency protection should allow appropriate latitude to child-protection professionals, while requiring compelling justification for this extreme interference with family life.

Liverpool City Council obtained an emergency protection order for three children after their father, who was registered blind and prohibited from driving, drove them to Derby. A police sergeant subsequently removed the youngest child, Callum, from the family home. Council social workers removed the two older children from their school the next day.

His Honour Judge Morgan held that section 46 of the Children Act 1989 could not be used while an emergency protection order was in force. He found the Council liable in assault, false imprisonment and under article 8 of the Convention. The Chief Constable was held liable to Callum in assault and false imprisonment, but the article 8 claim against him was dismissed.

The Council and Chief Constable appealed against liability. Callum and his parents appealed against dismissal of their article 8 claim. The central questions concerned the relationship between sections 44 and 46, the lawfulness of each removal, and whether the Council’s decision to obtain and execute the order was proportionate.

1. The Chief Constable’s appeal was dismissed; the claimants’ article 8 appeal was allowed; and the Council’s appeal was dismissed as to Callum but allowed as to James and Ryan. Dyson LJ gave the leading judgment. Lloyd and Thorpe LJJ agreed with all his conclusions.

2. The existence of an emergency protection order does not remove the police power under section 46 of the Children Act 1989. Nothing in the statutory language produces that result expressly or by necessary implication. A contrary construction would frustrate Parliament’s purpose of protecting children from significant harm, particularly where an officer was unaware of the order or urgent action was required far from the applicant authority.

3. The statutory scheme nevertheless gives primacy to court-authorised removal under section 44. An emergency protection order gives parental responsibility to its applicant and permits judicial directions. Police protection lacks those safeguards and lasts no more than 72 hours. An officer who knows that an emergency protection order exists should therefore use section 46 only for compelling reasons, where execution of the order is impracticable. The paramount consideration remains the need to protect the child from significant harm.

4. There were no compelling reasons for the police to remove Callum. The officer should first have asked the Council’s emergency duty team to execute the order. The Council contributed to the unlawful removal by inviting the officer to take Callum into care instead of arranging prompt execution by social workers. Both defendants were consequently liable in relation to that removal.

5. The unlawful removal was not in accordance with law for article 8 purposes. The officer’s good faith and the proportionality of his response to the circumstances as he understood them did not answer the claim. The observations in Wainwright v Home Office [2003] UKHL3 concerning accidental or negligent invasions of privacy were obiter and materially distinguishable from the unlawful police removal of a child from family life.

6. The Council acted proportionately in obtaining the emergency protection order and removing James and Ryan after their assessments. Judicial review of such a decision is not a fresh merits decision. Child-protection professionals receive appropriate latitude in assessing urgency and necessity, although removal from parental care remains an extreme interference requiring compelling justification. The history of broken assurances and the serious danger created by the father’s driving justified both obtaining and executing the order.

7. Thorpe LJ added that a prohibited steps order under Part II was not an appropriate substitute for the public-law protection available under Parts IV and V. The Council could involve police to locate Callum, but could not delegate execution of its emergency protection order to them.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 1173, dismissed the Chief Constable’s appeal, allowed the parents’ and Callum’s article 8 appeal, dismissed the Council’s appeal concerning Callum, and allowed the Council’s appeal concerning James and Ryan.

2. Liverpool County Court: His Honour Judge Morgan held the Council liable to the five claimants for assault, false imprisonment and breach of article 8. He held the Chief Constable liable to Callum for assault and false imprisonment, but dismissed the article 8, negligence and misfeasance claims against the Chief Constable.