S (A Child), Re

A court cannot use its inherent jurisdiction to control a local authority’s exercise of parental responsibility under a full care order. A parent seeking to prevent removal should apply for an injunction under the Human Rights Act 1998.

Where a child has been living successfully at home under a care order, removal normally requires rigorous analysis of every realistic option and proper parental involvement. Even after emergency removal, the authority must rapidly reconsider whether additional support or supervision permits the child’s return. The immediate-removal test is whether the child’s safety demands immediate separation.

A court determining removal must assess the whole welfare picture. It must also hear available material evidence before making serious factual findings against a party.

S lived successfully with his mother under a full care order whose care plan contemplated placement at home. After an incident involving alcohol and alleged domestic violence, and while S was in hospital with meningitis, the local authority notified the mother that S would enter foster care on discharge.

The mother applied to discharge the care order and sought S’s immediate return through the court’s inherent jurisdiction. HHJ Oliver declined to direct his return. He found breaches of the parents’ written agreement and made findings that the father had assaulted the mother three times, although the available father was not called to give evidence. The judge did not apply the safeguards in Re DE (Child) (Care Order: Change of Care Plan), [2014] EWFC 6.

The parents appealed on jurisdiction, the adequacy of the welfare assessment and the procedural fairness of the findings against the father.

1. Appeals allowed. The inherent jurisdiction could not be used to dilute or circumvent the local authority’s statutory power to exercise parental responsibility under the full care order. The proper route for preventing removal was an application for an injunction under the Human Rights Act 1998. The court could have granted materially identical relief through that jurisdiction.
2. The safeguards stated in Re DE applied. A local authority contemplating permanent removal of a child placed at home under a care order must rigorously analyse all realistic options and properly involve the parents. Unless safety and welfare demand immediate removal, the child should remain at home while that process occurs. The test for interim removal is whether the child’s safety demands immediate separation.
3. A crisis may justify immediate action, but it does not dispense with the protective process. Following a true emergency removal, the authority must rapidly and thoroughly implement the applicable safeguards. It must consider whether different or additional support or supervision would permit the child’s return pending the final hearing.
4. The judge’s focus on breaches of the written agreement was too narrow. Their seriousness did not make the mother’s history of excellent care, her attachment to S, her pursuit of medical treatment, the effect of separation or possible protective measures irrelevant. Those matters had to be placed in the welfare balance. Where a final hearing will be delayed, the court must balance the effects of long-term separation against the risk of short-term harm if the child remains at home.
5. The findings that the father had committed three assaults were procedurally unfair. His evidence was directly relevant, and he was present and willing to be examined. Serious positive findings could not fairly be made against him without hearing that evidence. Those findings were set aside, although the finding concerning what the mother told the police remained because both relevant witnesses had testified and been cross-examined.
6. The discharge proceedings were remitted for case management before a different circuit judge. The local authority remained free to pursue the assault allegations through properly tested evidence.

• Court of Appeal (Civil Division): Allowed both appeals in [2018] EWCA Civ 2512, set aside the assault findings against the father and remitted the discharge proceedings for case management before a different circuit judge.
• Central London Family Court: HHJ Oliver declined on 7 March 2018 to direct the local authority to return S to his mother and made findings that the father had assaulted her on three occasions.