(Court of Appeal; Carnwath and Jackson LJJ and Hedley J; 2 July 2010)
The mother reported concerns about episodes in which the child apparently stopped breathing. The hospital found nothing wrong and the consultant notified social services. The child was kept in hospital post-discharge day and was then removed from the hospital and from the mother by police pursuant to Children Act 1989, s 46, into foster care. At the inter partes hearing the mother agreed to go with the child into a mother and baby unit. The assessment was positive and the proceedings were discontinued. The mother sought damages under Human Rights Act 1998, s 7, against the local authority and the police. The judge dismissed claim, concluding that it was not practical to obtain an emergency protection order. Question as to whether the actions were lawful and proportionate.
Held that the judge was entitled to conclude that the decision to remove the child was justified and that in circumstances it was impractical to convene a family proceedings court.
It was the local authority's duty where practicable to act in partnership with the parent and to devise a process (whether by supervision, retention in hospital or removal) which commanded at least the acquiescence of the parent. There were grounds for an emergency protection order as made by the medical consultant who considered that the child should not go home with the mother without supervision because of significant possibility that the child might suffer significant harm (not more than 50%, but not sufficiently near zero to be discounted). The mother had made it clear that she wanted only family support or supervision and had indicated she would remove child from hospital. Viable child protection procedures would sometimes inflict what turns out to have been unnecessary distress on families. However, in the present case the public authorities hadn't followed best practice as more discussion might have led to some resolution.
This judgment outlines the approach that should be taken in emergency child protection cases.
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