Nottingham City Council v LW & Ors (Rev 1)

Where a local authority plans to seek the removal of a newborn child, it must issue care proceedings and any interim care order application promptly. The availability of hospital accommodation does not justify delay. Additional evidence can be filed after issue.

At an interim stage, removal should be sanctioned only where the child’s safety requires interim protection. The child’s welfare remains paramount, while the parents and child must receive a fair and effective hearing. Failure to act timeously may cause procedural unfairness and lead to an order for costs.

Nottingham City Council applied for an interim care order in respect of a 12-day-old baby, seeking approval of a plan for placement with foster carers. The application followed existing concerns about domestic abuse, drug use, the mother’s care of an older child and the father’s recent drug overdose.

The parents opposed removal and wished to contest the evidence at a one-day hearing. The local authority issued the proceedings late and served the application only shortly before the hearing. The central issues were whether interim removal was necessary and how the local authority’s delay affected the fairness and conduct of the proceedings.

1. The interim threshold under sections 31(2) and 38(1) of the Children Act 1989 was effectively conceded. The court’s paramount consideration was the child’s welfare under section 1(1), with regard to the welfare checklist in section 1(3).
2. The court had regard to the parents’ and child’s rights under Articles 6 and 8 of the Convention. Where the Article 8 rights of a parent and child conflict, the child’s rights prevail: Yousef v The Netherlands [2003] 1 FLR 210.
3. Removal at or shortly after birth should not be sanctioned at an interim stage unless the child’s safety requires interim protection. This principle was drawn from Re L-A [2009] EWCA Civ 822, citing with approval Re K and H [2007] 1 FLR 2043.
4. On the evidence, there were reasonable grounds for believing that the child would suffer, or was at risk of suffering, significant harm in the sole and unsupported care of either parent. The court therefore made an interim care order and approved foster placement, pending a contested hearing. Supervised contact was directed each weekday.
5. The local authority’s delay made the hearing largely ineffective and procedurally unfair to the parents and children’s guardian. Where removal of a newborn is contemplated, a risk assessment should begin during pregnancy, proceedings should ordinarily be issued on the day of birth and in any event within 24 hours of birth or notification, and the application should generally be made within no more than five days save in exceptional circumstances. The local authority was ordered to pay the respondents’ costs.