D (A Child)

When a court considers separating a newborn from a parent, the parent should ordinarily receive a fair opportunity to know the case and respond. This is especially important where the parent has learning difficulties and separation may make later reunification difficult. Immediate removal without a normal hearing is justified only where the risk is so serious and immediate that even a short delay, such as a day or two, cannot safely be allowed. The court must assess the gravity and immediacy of the risk, the availability of interim safeguards and the consequences of separation. A demanding support arrangement may be temporary, but its limitations do not alone justify dispensing with procedural fairness.

O was born to V, a 21-year-old mother with learning difficulties. They were living together with continuous support while care proceedings progressed. At a hearing listed for case planning, the Children’s Guardian raised concerns about O’s handling, warmth and care. Near the end of the hearing, the local authority changed its position and sought O’s immediate placement in foster care. HHJ Burrows made that order without V having a written case or an opportunity to give her account. The Court of Appeal granted an urgent appeal. The central issue was whether the hearing had been fair and whether the risk justified removing O before V could prepare and be heard.

1. Disposition. Lord Justice Peter Jackson granted permission to appeal and allowed the appeal against the separation of O from V. Lord Justice Males and Lady Justice Simler agreed.
2. Procedural fairness. The hearing was not fair to V. Removal had not been the subject of the listed hearing, no written arguments had been prepared, V had no proper opportunity to respond, and the local authority changed its position at the end of the hearing. Those deficiencies were particularly significant because V had learning difficulties and O had only recently been born.
3. Urgent exception. A baby may exceptionally be removed immediately, even without the mother knowing that an order is being made, where the risk is so serious that a normal hearing cannot safely be awaited. The relevant question was whether O’s situation was so urgent that V could not be given even a short period to prepare her case.
4. Application. The risks identified by the judge could have justified separation after a fair hearing. They did not justify dispensing with that hearing. The existing arrangements were a temporary holding position and could not continue indefinitely, but they could continue for the short period needed to enable V to be heard. The court also had to recognise that separating a newborn from the mother could make later reunification and fair assessment of V’s parenting much more difficult.
5. Orders. The local authority’s interim care order remained in force and it retained power to remove O in an emergency. Support with different carers and accommodation was to continue. The next hearing before HHJ Burrows remained in place, with short documents to be prepared so that V understood the case, and with live evidence to be considered if necessary. The judge was to decide the separation issue afresh after a fair hearing.

• Court of Appeal (Civil Division): Permission granted and appeal allowed against the order separating O from V. The interim care order and arrangements for a further hearing remained in force.
• Family Court at Preston: HHJ Burrows ordered O’s immediate placement in foster care after concluding that his safety required removal from V’s care.