The steps to be taken by a local authority when they wish to remove a child who has been placed with parents under a care order were considered by the High Court in the recent case of Re DE (A Child)  EWFC 6,  2 FLR (forthcoming). The decision of Mr Justice Baker has resulted in the guidance he proposed being approved by the President of the Family Division and it is therefore necessary for all family practitioners to be aware of it.
The case concerned an application for permission to appeal the decision of a District Judge not to grant injunctive relief to prevent the removal of a child from the care of his parents pursuant to a full care order, with a full hearing to follow if permission was granted.
The subject of the appeal was D, a child aged 2 and a half who had lived with his parents since birth. The local authority issued an application for a care order in respect of D following his birth due to the fact that the parents were assessed to have certain cognitive difficulties, father to the extent that he required the assistance of the Official Solicitor. During the care proceedings the parents successfully completed a 16-week residential placement, and with the support of extended family and close friends were able to maintain this sufficiently for the local authority to recommend placement with the parents under a care order in their final care plan. This was cautiously supported by the Children’s Guardian. The care plan further provided that in the event of placement breakdown D would be removed to a foster placement, and as part of the final order made on 07 November 2012 the local authority undertook not to remove D from his parents without giving 7 days notice in advance, unless there was an emergency.
Following the final hearing, concerns about D began to escalate to the extent that by April 2014 the local authority had decided there was a need to remove him, and notified the parents this would take place on 25 April 2014.
The Father’s representatives in the care proceedings quickly issued an application for the discharge of the care order. The case was listed before a district judge on 24 April 2014. The district judge suggested that the Father ought to have applied for an injunction to prevent the removal of the child. As a result, the solicitor for the Father, supported by the solicitor for the Mother, made an oral application for an injunction under s 8(1) of the Human Rights Act 1998. It was agreed that there was no emergency situation, but in the absence of the local authority agreeing to some breathing space and not pursuing the removal, the judge felt he was being asked to go behind the care order which he considered he could not do as it had not been appealed. The local authority continued to press for removal of the child, and the judge then went on to suggest that when considering whether to grant relief under s 8 of the Human Rights Act 1998 he would need to consider the likelihood of the Father succeeding in his discharge application. He considered that the Father was unlikely to succeed, and refused to grant injunctive relief to prevent D’s removal. D was removed from his parents the next day. An appeal was filed on behalf of the Father.
Mr Justice Baker considered the matter in the context of Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075 and Re B-S (Adoption: Application of s 47(5))  EWCA Civ 1146,  1 FLR 1035 and felt that the circumstances spelled out in those cases were equally applicable in a case where the local authority sought to remove a child post care order. He felt that whilst the analysis was being carried out, the child should remain at home unless his safety and welfare requires that he be removed immediately. Importantly, at para  the judge expressly disagreed with the suggestion advanced by the local authority that the removal of D from the family home was lawful simply by reason of the care order. He said the local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, would be unlawful.
The judge went on to give guidance about how to he would have approached this case, and then more general guidance which he says at para  has the approval of the President of the Family Division. The guidance at para  says this:
'To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.
(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.
(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.
(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.
(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s 8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s 8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.
(6) On hearing an application for an injunction under s 8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home.” [Emphasis added]
Local Authorities considering placement with parents should therefore consider the potential procedure for removal at care planning stage. It is clear that reliance on the simple fact of the care order in the absence of a genuine emergency will not be enough, and parents will be empowered and supported by the court to block such a move if the child’s welfare requires it pending a full determination of an application to discharge a care order.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.