S (Minors), Re

Before endorsing a changed interim-care plan that removes children from a parent, the court must ensure that the proposal is formulated, supported by evidence and communicated with adequate notice. Removal without notice is exceptional and requires the children’s welfare to demand it. The court must assess whether immediate separation is necessary for safety, balance its consequences, consider workable protective alternatives and address contact arrangements. A brief emergency enquiry cannot justify leaving the parent without a prompt, fair hearing at which the local authority’s case can be tested. An appeal may be brought against a lower-court judgment even where the hearing produced no order, under CPR 52.10(2)(a).

In complex care proceedings concerning two young children, the local authority held interim care orders but initially planned for the children to remain with their mother. Following serious findings that their father presented a grave danger to children, injunctions restricted his contact with the family.

At a hearing on 23 December 2009, the local authority changed its interim care plan and sought immediate foster placement after concerns that the mother wished to communicate with the father and had allowed the paternal grandmother to stay overnight. The mother had no prior notice that removal would be proposed. The county court judge endorsed the changed plan, although no fresh interim care order was made.

The mother appealed. The central issue was whether the procedure and evidential basis for the immediate removal, and the judge’s endorsement of it, were legally acceptable.

1. Appeal allowed. Wilson LJ, whose reasons Baron J expressly mirrored, treated the appeal as one against the county court judgment of 23 December 2009. Although that hearing produced no order, the Court of Appeal could set aside or vary a judgment under CPR 52.10(2)(a).

2. The circumstances of the removal were legally unacceptable. The mother received no adequate notice that immediate removal would be sought. Save in rare cases where welfare requires removal without notice, the local authority must formulate and communicate its case properly. It should have presented amended plans through evidence from a social worker or manager, so that the mother could test the grounds for removal. This applied the procedural requirement identified in Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551.

3. The material before the judge did not demonstrate that the children’s safety required their immediate separation from their mother. The mother’s conduct raised concern, but no breach of the injunction had been found or alleged against her. The court applied Re LA (Care: Chronic Neglect) [2009] EWCA Civ 822: immediate separation requires grounds showing that safety demands it.

4. The judge also failed to conduct a proper balance of the competing considerations. He should have considered the children’s welfare, their close bond with their mother, the infant child’s age, the mother’s accepted capacity to meet their needs, and the available protective alternative of a return to the refuge. He should also have considered the proposed contact arrangements. It was wrong to leave contact wholly to the local authority’s discretion, particularly given the need for very frequent contact with the infant.

5. If immediate removal had been necessary, the judge should have directed an urgent further hearing after Christmas. At that hearing the local authority’s case should have been properly advanced, the mother should have had a fair opportunity to challenge it, and the merits of the altered plans should have received full consideration. The court considered that the procedure had clearly infringed the mother’s and children’s rights under Articles 6 and 8 of the ECHR. The question whether the children should remain in foster care or return to their mother was remitted for determination by a High Court judge.

• Court of Appeal (Civil Division) — the mother was granted permission to appeal and her appeal was allowed: [2010] EWCA Civ 421. The placement question was directed to be considered by a High Court judge.
• Liverpool County Court — on 23 December 2009, HHJ Dodds endorsed the local authority’s amended interim care plan for immediate removal into short-term foster care. No fresh interim care order was made at that hearing.