H (A Child), Re

At the interim stage of public law children proceedings, the court has jurisdiction under section 8(1) of the Human Rights Act 1998 to consider an injunction restraining a local authority from separating a child from a parent. Where the first-instance judge has declined to exercise that jurisdiction because of a misdirection, the discretion must be exercised promptly. Interim relief may preserve the status quo meanwhile. The decision was deliberately limited to resolving an urgent procedural problem. The Court of Appeal did not determine the merits of the interim care order or establish general principles for future cases.

Public law proceedings concerned the ability of a mother to care safely for her daughter. The local authority held interim care orders and proposed removing the child from the mother’s care. On 19 June, HHJ Harris held that removal would breach Article 8 and would be neither necessary nor proportionate. On 21 June, she granted an interim care order, considering herself bound by authority, but indicated that she would entertain an application for an injunction under section 8(1) of the Human Rights Act 1998. On 23 June, she dismissed that application for want of jurisdiction.

On appeal, the local authority conceded that the judge had jurisdiction. The central issue was whether the Court of Appeal should correct that jurisdictional error and preserve the existing arrangements pending the judge’s exercise of discretion.

1. Application granted. The Court of Appeal accepted the local authority’s concession that HHJ Harris had jurisdiction to consider and, in an appropriate case, grant an injunction under section 8(1) of the Human Rights Act 1998. The judge had therefore misdirected herself in concluding that no such jurisdiction existed.
2. At the interim stage, the jurisdiction was supported by the judgment of Hale LJ in W [2001] EWCA Civ 757 and by the recent decision in Coventry City Council [2011] EWCA Civ 729. The Court of Appeal did not undertake a full examination of the authorities because the hearing was short and the oral argument had not been fully developed.
3. Because the first-instance judge had not exercised the discretion which she possessed, that discretion had to be exercised by her at the earliest possible date. She would have the benefit of further expert reports and would be better placed than the Court of Appeal to assess the circumstances.
4. Pending that decision, the Court granted interim relief preserving the status quo. There was to be no removal of the child from the mother before the judge could reconsider the injunction, with the existing arrangements protected at least until the listed hearing on 19 July.
5. Lady Justice Black emphasised that the decision was a pragmatic solution to an urgent problem. The Court did not determine whether the original interim care order was wrong and did not intend to lay down principles or guidelines for this class of case.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1009, the application was granted. The Court held that the Watford Court had jurisdiction to consider a section 8(1) injunction and granted interim relief preventing removal pending that consideration.
• Watford Court: HHJ Harris recognised the local authority’s general entitlement to an interim care order but objected to the proposed removal. She later granted the interim care order, then dismissed the mother’s injunction application on the mistaken basis that the court lacked jurisdiction.