A v East Sussex County Council & Ors

Emergency removal of a child should ordinarily be authorised by an emergency protection order under the Children Act 1989. Police protection under section 46 is a secondary measure. It may be used where obtaining an order is not reasonably practicable because immediate action is needed to protect the child from likely significant harm.

Lawfulness and proportionality must be assessed by reference to the information reasonably available to decision-makers at the time. A later conclusion that the feared harm did not occur does not itself make the intervention unlawful. Even in an emergency, authorities should seek cooperation with the parent and use the least disruptive effective measure.

The appellant brought a claim for damages under section 7 of the Human Rights Act 1998 against a local authority and the chief constable. Her infant son had been removed from hospital by police under section 46 of the Children Act 1989 after a consultant paediatrician raised concerns about possible fabricated illness and the risk of significant harm.

The mother wished to take the child home and no order was in force. The respondents arranged a contested family-court hearing two days later. The child subsequently returned to the appellant’s care and proceedings were discontinued.

HHJ Coltart in Brighton County Court dismissed the claim. The appeal concerned whether the respondents should instead have sought an emergency protection order, and whether the police removal was lawful and proportionate in the circumstances then known.

Appeal dismissed. The court granted permission to appeal, but upheld HHJ Coltart’s dismissal of the appellant’s claim.

1. The statutory scheme gives primacy to an emergency protection order under section 44 of the Children Act 1989. Following Langley v Liverpool City Council, [2005] EWCA Civ 1173, removal should usually be effected under that judicial process. Police powers under section 46 should be used only where it is not reasonably practicable to obtain an order and protection from significant harm requires action.
2. On the facts reasonably known at the time, the judge was entitled to find that the local authority and police faced an immediate problem. The consultant’s assessment supported a real possibility of significant harm if the child left hospital unsupervised. The appellant was legally able and intending to leave with the child. The urgency therefore made an application for an emergency protection order impracticable and justified immediate use of section 46.
3. The section 46(1) condition was met. The constable had reasonable cause to believe that the child would otherwise be likely to suffer significant harm. The intervention was neither unlawful nor disproportionate. That the eventual assessment was favourable and the distress later appeared probably unnecessary did not invalidate a protective decision properly made on the information then available.
4. It was unnecessary to decide whether an emergency protection order would in fact have been granted. The court nevertheless considered that a magistrate applying the established emergency-protection guidance could have granted one.

The court added non-dispositive guidance. Authorities should, where possible, work with the parent and the parent’s solicitor, explore voluntary or hospital-based arrangements, prefer the least intrusive effective measure, give appropriate information and contact after removal, and secure an inter partes hearing as soon as possible.

• Court of Appeal (Civil Division) — permission to appeal was granted and the appeal was dismissed: [2010] EWCA Civ 743.
• Brighton County Court — on 2 December 2009, HHJ Coltart dismissed the appellant’s claim for damages under section 7 of the Human Rights Act 1998.