S (A Child), Re

In care proceedings, separating a child from a parent under an interim care order is ordinarily a judicial decision. Only wholly exceptional circumstances justify a local authority effecting a temporary separation which curtails the court’s ability to decide the issue. The relevant interim test is whether continued removal is proportionate to the risk of harm if the child returns to parental care. A social worker faced with an immediate protection decision is assessed as exercising a difficult discretion on the information then available. Good-faith action, reasonably taken to avoid a perceived risk of significant harm and without an intention to frustrate the court, may be justified. The court set aside critical findings against the local authority but left the interim care order in force.

Care proceedings concerned S, a baby living with her mother in a prison mother-and-baby unit. Following reports of repeated prop feeding, including one incident in which S appeared to choke, the local authority sought additional supervision. When the prison could not guarantee S’s safety overnight, the local authority arranged her temporary removal under police protection.

At the interim care-order hearing, Her Honour Judge Finnerty criticised the local authority, finding that it had failed to balance the risks and had effectively usurped the court’s authority. The mother subsequently brought proceedings under sections 7(1)(b) and 8(1) of the Human Rights Act 1998. The judge held that the local authority was bound by her earlier findings and required permission to defend the claim, but refused permission to appeal. The central issue was whether the findings concerning the local authority’s removal of S should stand.

1. Disposition. The Court of Appeal unanimously allowed the appeal. It set aside the challenged findings of fact and criticism of the local authority, while leaving in force the interim care order, which had been rightly made.
2. Judicial safeguard. Separation under an interim care order is ordinarily a judicial rather than an administrative decision. The court is the safeguard against arbitrary or inappropriate local-authority action. The rule is that the court should decide the issue unfettered by events which effectively curtail its powers. Only wholly exceptional circumstances justify administrative action of that kind.
3. Applicable approach. The court preferred the formulation that asks whether continued removal is proportionate to the risk of harm to which the child would be exposed if returned to parental care. That formulation had been approved in Re B (Care Proceedings: Interim Care Orders) [2009] EWCA Civ 1254 and Re B (interim care order) [2010] EWCA Civ 324. ECHR Articles 6 and 8 are engaged in every interim care-order application. The mother’s Convention rights were qualified, and the child also had rights not to suffer significant harm and not to be separated from her mother unless welfare required it.
4. Application to the social worker’s decision. The social worker faced a genuine and difficult protective choice. She acted on the information then available, sought to establish whether the mother and child could safely remain together, and acted after the prison said it could not guarantee safety during periods of limited supervision. The risk of further significant harm was reasonably perceived. Her decision was to secure a temporary overnight separation, not to frustrate the pending interim care-order hearing. It was therefore wrong to criticise her as having usurped the court’s function. The case was materially different from Re F (Placement Order) [2008] EWCA Civ 439, where the local authority deliberately acted so as to frustrate a father’s application.
5. Additional ground. The judge’s impression that the local authority was planning immediate reunification was inaccurate. Counsel had proposed further assessment and the possibility of eventual reunification, subject to its outcome. No argument was heard on that peripheral ground.

1. Court of Appeal (Civil Division): The appeal from Leeds County Court was unanimously allowed. The challenged findings were set aside and the interim care order remained in force. [2010] EWCA Civ 1383.
2. Leeds County Court: Her Honour Judge Finnerty made an interim care order on 11 December 2009 and made critical findings about the local authority. In a judgment dated 6 May 2010, she held that the local authority was bound by those findings and required permission to defend the Human Rights Act claim; permission to appeal was refused.