G, R (On the application of) v Nottingham City Council

A local authority, social worker or hospital cannot remove a child from a parent without parental agreement or prior lawful authority, ordinarily an order of a family court. The statutory exceptions are limited. A police constable may act under Children Act 1989, section 46, and a hospital may act under section 3(5) where medical necessity makes immediate intervention reasonable to safeguard the child. Immediate intervention to prevent threatened violence is also permissible as an application of the ordinary law. Administrative arrangements or a birth plan cannot replace judicial authorisation. Any interim order must preserve the ability of the local authority to seek, and comply with, later lawful authority.

G, an 18-year-old former child in care, gave birth in hospital. Pursuant to an inter-agency child protection recommendation and a hospital birth plan, her baby was removed from her shortly after birth and placed in a separate room. No emergency protection order or interim care order had been obtained, and there was no medical emergency or allegation of immediate physical danger.

In pending judicial review proceedings concerning the adequacy of G’s pathway plan, G sought urgent relief requiring reunification. The central issue was whether the local authority and hospital had lawful authority to separate mother and child before obtaining a court order.

1. Relief granted. The local authority and the hospital were ordered forthwith to reunite G and her baby, subject to there being no lawful authority for their separation and G remaining at the hospital. The baby was reunited with G shortly afterwards.
2. Under the Children Act 1989, a local authority or social worker has no power to remove a child from a parent, or take a child into care without parental agreement, unless judicial authority has first been obtained. The relevant authority may be an emergency protection order under section 44, an interim care order under section 38, a care order, or, exceptionally and subject to section 100, wardship. The same principle applies to a hospital and its medical staff. A decision made by officials, or recorded in a birth plan, is not a substitute for a court order.
3. Section 46 gives a police constable a distinct power to remove a child where there is reasonable cause to believe that the child would otherwise suffer significant harm. That power is not conferred on local authorities or social workers. Independently, anyone present may intervene to prevent an immediate criminal assault. There was no evidence of such a risk here.
4. A hospital having care of a child may in an urgent medical situation rely on section 3(5) to take reasonable action to safeguard or promote the child’s welfare, including intervention despite parental objection where necessary to preserve life or prevent irreversible harm. No medical justification existed in this case.
5. The order did not prevent the local authority applying for an emergency protection order or interim care order, or the implementation of any order subsequently made. The judicial review challenge to the pathway plan remained undetermined.