G (Children)

In care proceedings, a judge is not confined to a binary choice between discharging a care order and permitting immediate removal where the evidence is incomplete and a significant change of care plan requires further assessment. All courts may grant relief under the Human Rights Act 1998, including an injunction protecting Article 8 rights. If the case is not ready, the proper course is to adjourn for case-management directions and consider interim protection. Whether removal is unlawful is fact-sensitive. It must be assessed on current evidence and by careful analysis of the circumstances of each child.

Nine children were made subject to care orders under the Children Act 1989 on a plan that they remain with their mother. The local authority later proposed removing six children. The mother applied to discharge the care orders and sought an injunction under the Human Rights Act 1998. HH Judge Cronin treated the hearing as final, concluded that she lacked jurisdiction to extend the injunction, and discharged the orders. The local authority appealed, arguing that the application should have been adjourned and interim protection continued. The central issues were the judge’s jurisdiction under the Act and the proper course where evidence and care plans were incomplete.

The Court of Appeal allowed the appeal. Baker LJ gave the judgment, with Simon and David Richards LJJ agreeing.

1. The judge’s jurisdiction was governed by the Human Rights Act 1998. Under s.6(3), all courts are public authorities. Under s.7(1)(b), a person claiming to be a victim may rely on Convention rights in ongoing proceedings. Under s.8(1), the court may grant appropriate relief, including an injunction within its powers. In care proceedings, such an injunction may restrain a local authority from unlawfully interfering with Article 8 rights. The power arises under the Act, not under the High Court’s inherent jurisdiction. The court relied on Re DE [2014] EWFC 6, reported under the alternative name Re E (A Child) (Care Order : Change of Care Plan) [2015] Fam 145, approved in Re S [2018] EWCA Civ 2512, and the authorities cited at paragraph 22.
2. HH Judge Cronin had wrongly assumed that only a judge authorised to sit as a deputy High Court judge could extend the injunction. Since she considered the case unready, with incomplete evidence and assessments, she should have adjourned it for case-management directions and considered interim injunctive protection rather than forcing a choice between discharge and immediate removal.
3. The Court of Appeal declined to determine the merits of discharging the care orders. Whether removal would unlawfully interfere with Article 8 rights required assessment on the facts existing when the issue was determined, with careful analysis of the circumstances and needs of each child. The appellate court lacked up-to-date information and would not extend the injunction until the final hearing.
4. The discharge order was set aside. The application was remitted for a case-management directions hearing. The injunction was extended only until that hearing or further order, subject to removal being justified by circumstances warranting an emergency protection order or by the police exercising their powers under s.46 of the Children Act 1989. The matter was to be allocated to another judge.

• Court of Appeal (Civil Division): Appeal allowed. The discharge order was set aside, the application was remitted for case-management directions, and interim injunctive protection was continued until that hearing or further order: [2019] EWCA Civ 1779.
• Family Court: HH Judge Cronin discharged the care orders on 29 July 2019 after treating the hearing as final and concluding that she lacked power to extend the Human Rights Act injunction.