Local Authorities Must Follow Rules Where Children Are Concerned.

Family cases are private matters so we may never know the full story, but the recent removal of a two hour old baby from its mother by a local authority in Nottingham, without any court order, clearly breaks the law.

The mother’s social workers decided to separate the baby from her mother as she had some difficulties. Additionally contact between mother and baby would only be allowed with supervision.

The mother’s solicitor immediately made an application to the court where Mr Justice Munby heavily criticised the local authority by saying that no baby could be removed “as the result of a decision taken by officials in some room”.

It reminded me of Cleveland in the summer of 1987. During the course of a few months children were taken away from their parents on dubious medical evidence. Children were separated from their families, often at midnight or dawn, and placed in foster and residential homes without any warning. Procedures for challenging matters were woefully inadequate.

At the end of lengthy hearings the medical evidence was discredited and the majority of the children were returned home to their family. Dame Butler-Sloss, one of our senior judges, produced an extensive report containing numerous criticisms of the system. One example was social workers threatening or bribing children to give evidence against their parents.

These actions brought to a head concerns people were voicing about the child care system in England and Wales. The remedy was the creation of The Children Act 1989. This benchmark act made it clear that the child’s welfare must be paramount when considering any issue concerning a child. It covers the majority of legal matters affecting children.

The Act created clearly defined procedures for dealing with disputes over children. Whether the dispute is with the local authority (primarily Care Proceedings) or between their parents. Local authorities have a wide range of powers to protect children provided they follow the rules. However the child is always assured of a voice in court through an independent worker (called a Guardian) and its own legal representation.

In an emergency the local authority can apply for an Emergency Protection Order which is limited to eight days. The courts in various decisions have clarified when those orders can be made. There must be a genuine emergency and unless action is taken the child is at risk of significant harm. It is most unlikely that these criteria apply in a hospital environment as appears to be the case in Nottingham.

Temporary care orders can also be sought. The parents are informed of the hearing and the child has a voice through its Guardian and solicitor. The evidence can be tested. This did not happen quickly in Cleveland and there was no opportunity for the Nottingham mother to challenge the local authority.

Some parents with difficulties will accept that the local authority should help where their situation is desperate. However parents have the right to challenge Orders and it is for the court to decide what happens and the child’s welfare is always their priority.

In fairness to Nottingham’s local authority they may have been caught between a rock and a hard place. As a lawyer dealing with child care issues I am aware of the limited resources available to social workers.

Over the last few years we have seen a flurry of new protocols all with laudable aims but all needing time and money. They have increased the workload of the local authority and children teams who work under considerable pressure in highly charged situations.

These new initiatives show no sign of abating. Local authorities run the risk of having to pay thousands of pounds of court fees when getting involved in care proceedings if a current consultation document is approved by the government.

Child care lawyers are concerned that this will further increase pressure on local authorities working within tight budgets.

It appears that in Nottingham the burden of the current system meant that the local authority decided short cuts were required, a wholly inappropriate response.

Nottingham social services’ action of removing a child without any order was a step back into the past. The child’s welfare must be paramount but so is following the rule of law. Parents must also have the opportunity to challenge local authorities.

Local authorities should challenge central government who largely control their resources rather than short circuiting the law. The Act has, over the years, provided an excellent system of checks and balances when considering issues concerning children.

For more information or advice please contact Greg Yates 
Greg Yates is a member of the Law Society’s Children Panel

Published 05/02/2008. The author of this article is Greg Yates