The emergency removal of children placed at home under a care order – new guidance from the Court of Appeal
Re: S  EWCA 2512 (Civ) is a precedent-setting case that relates to the procedure for the emergency removal of a child placed at home under a final care order, an increasingly prevalent final option in care cases. It also addresses the jurisdictional basis upon which such claims are to be made, and under the second ground of appeal deals with the issue of not cross-examining a key witness.
The child, S, was removed aged just over 12 months pursuant to a care order made in 2017 whereby, as of summer 2017, the child returned home to live with the mother. There was an alleged incident between the mother and father in December 2017 as a result of which the police were called.
The mother was more concerned at that stage by the child’s ongoing illness (which was the reason why the father had come to the mother’s address) and the child was taken to hospital. The mother, having been told repeatedly over the previous few days by a variety of medical professionals that there was nothing seriously wrong with the child, was vindicated in her persistent focus on the child when it was in fact confirmed that he had meningitis. The child remained hospitalised for 10 days, and the mother did not leave the hospital for this entire time. The local authority, expressing concern about the dispute between the parents, removed the child upon his discharge from hospital. The Court of Appeal found that this was done without proper consideration or consultation, and without adequate records being kept.
The mother sought to challenge the removal (the local authority not having sought to bring the matter to court themselves) and the matter was heard at first instance in March 2018. This was 7 weeks after removal, a delay noted by the Court of Appeal as being unsatisfactory and based in part on delays waiting for a hearing and in part on delays in receipt of police evidence. The child remained away from his mother for some 7 months, until after the decision of the Court of Appeal in August 2018.
The local authority in this case was found not to have followed any distinct procedure for the removal of a child at all [see paragraphs 51-54], and did not get close to compliance with that set out in Re: DE  EWFC 6, the guidance from which was confirmed in Re: S as being a necessary requirement even if the case is an emergency.
The only leeway for departure from the Re: DE guidance offered by the Court of Appeal is a case where the urgency is such that there literally is not the time to follow the protocol, in which case the procedure should still be followed as closely as possible and matters that cannot be undertaken prior to removal should still be done as soon as possible thereafter. [See in particular paragraphs 38-39, 49 and 64-65]
The jurisdictional basis upon which such claims are brought is also clarified as being under section 7 of the Human Rights Act 1998 [see paragraphs 36-37] and the court also helpfully clarifies that the courts themselves should treat such applications as similarly urgent, in terms of allocation of hearings, as interim care order applications where removal is sought . It would appear sensible that parties making applications in cases of this sort in future this might include reference to this when asking for an urgent listing.
This is also yet another in the litany of cases we have seen over the years where one party’s case (here the local authority) is not properly put in cross-examination to a key witness. Re: S is a stark example where the father was not cross-examined by the local authority at all, on the basis that it was already known that he would deny the allegations made against him and so there was little value in putting them to him only for him to deny it ‘out loud’ so to speak. This was despite the father (i) having done a witness statement addressing what was then known of the allegations and being willing to speak to its contents and (ii) not having been aware at the time of writing his statement what police evidence would be received (as it came in late). The Court of Appeal was clear in its criticism of this approach and set aside the findings made on the basis they were unfairly made. [See in particular paragraphs 72-74]
This is a helpful case in relation to what may become an increasingly common occurrence in future years.