Emergency Protection Orders
Judicial Review of ex parte EPO decision by Family Court
X COUNCIL v B (EMERGENCY PROTECTION ORDERS)
[2004] EWHC 2015 (Fam)
Family Division
Munby J
16 August 2004
Care - Human rights - Emergency protection orders - Care plans - Parental involvement in changes to care plan - Lacunae in EPO scheme
The eldest of the four children was seriously ill, and the local authority had concerns about the way in which the parents were caring for the entire family in what was acknowledged to be a stressful situation. Following a strategy meeting at which the mother was unwilling to discuss the situation of the children, the three younger children were taken into foster care under ex parte emergency protection orders (EPOs), each to last 8 days (the eldest child, then 17, refused to comply with the order relating to her). The local authority's stated aim was the organisation of medical examinations without any risk of parental interference. Interim care orders (ICOs) were obtained, and after just over a month in foster care the three children were placed with the maternal grandparents. It was eventually accepted that it was in the best interests of the three children, one of whom, aged 15, had already moved back to the parents' home against the wishes of the local authority, to return to live with the parents under a new interim care regime. Care plans presented to the court, which provided that if the authority were to remove the children first consideration would be given to placement with the maternal grandparents and that the local authority would endeavour to give the parents at least 24 hours' notice of removal unless the situation was deemed to be an emergency, were not approved by the court until the plans had been revised to provide that, if the local authority decided that the children should be removed from the parents' care, the matter would be put before the court for determination. Following successful rehabilitation to the parents under ICOs, the local authority sought an order giving it permission to withdraw its application for care orders.
Held - giving the local authority leave to withdraw its applications for care orders -
(1) There were occasions, albeit rare, in which, however desirable the pursuit of truth might be, it had to give way to a child's true best interests. This was a situation in which issues were best left unresolved by the judicial process, and ought to be consigned to resolution within the privacy of the family (see para [25]).
(2) The care plans originally presented to the court by the local authority had not been acceptable. It seemed that not all local authorities had yet appreciated the imperative demands of the Human Rights Act 1998, or yet adjusted their day-to-day practices to meet those demands. Repeating what had been said in Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam), a local authority, even if clothed with the authority of a care order, was not entitled to make significant changes in the care plan, or to change the arrangements under which the children were living, let alone to remove the children from home if they were living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision was made (see paras [29], [31]).
(3) A number of lacunae in the statutory scheme made it especially important that both the local authority and the justices in the family proceedings court (FPC) approached every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the human rights of both the child and the parents (see para [41]).
RE B (CARE: INTERFERENCE WITH FAMILY LIFE)
[2003] EWCA Civ 786
Court of Appeal
Thorpe LJ and Bodey J
21 May 2003
Care proceedings - Threshold met - Failure to apply welfare test - Judge must consider Art 8 rights of all family members before empowering authority to remove child - Wrong to put obligation on parents to apply to veto removal
In the course of confidential communication with her psychiatrist, a 22-year-old girl from an orthodox Hasidic Jewish family related that she and some of her sisters had had some sexual involvement with their grandfather. The psychiatrist informed a practising social worker who alerted the local authority. The local authority sought orders in wardship and subsequently invoked intervention under the public law provisions of the Children Act 1989, although no formal application was made. The judge ordered that there should be an interim care order in respect of each of the six minor children to the local authority. By way of a protective recital, the judge provided that the local authority would give the parents 48 hours' notice if they decided to remove the children, thereby giving the parents the opportunity to seek a judicial veto. The parents appealed the order on the grounds that there was no evidential basis upon which the judge could find that the threshold in s. 31 of the Children Act 1989 had been crossed, that the judge failed to consider the welfare exercise and that the judge was wrong in putting the obligation on the parents to apply to veto removal rather than requiring the local authority to apply for permission to remove the children.
Held - granting the parents' appeal and adjourning the application for an interim care order with liberty to the parents to apply on short notice -
(1) The judge had to exercise a broad and worldly judgment. While there were considerations going each way, he had been fully entitled to reach the conclusion that the s. 31 threshold had been crossed. His assessment of the value of the psychiatrist's reports was entirely legitimate (see paras [26], [32]).
(2) There was a vital judicial task between finding the s. 31 threshold crossed and endorsing the care order. Where the application was for a care order empowering the local authority to remove a child or children from the family, the judge in modern times could not make such an order without considering the rights of the adult members of the family and of the children of the family under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. He could not sanction such an interference with family life unless he was satisfied that it was both necessary and proportionate and that no less radical form of order would achieve the essential end of promoting the welfare of the children. The judge had failed to conduct this welfare exercise (see paras [34], [35]).
(3) The judge should have put the obligation upon the local authority to apply for permission to remove rather than on the parents to apply to veto the removal. The proper order was that the local authority's application for an interim care order should stand adjourned with liberty to apply on short notice (see para [36]).
Per curiam : the practical consequence of the local authority's failure to issue an application for the interim care order in the relevant family proceedings court was that the children were denied the advantage of representation in the proceedings. Neither a guardian nor a solicitor had been appointed for them. CAFCASS London arranged for a Jewish guardian to attend the appeal hearing on very short notice (see paras [15], [16]).
A COUNTY COUNCIL v A MOTHER, A FATHER AND X, Y AND Z (BY THEIR GUARDIAN)
[2005] EWHC 31 (Fam)
Family Division
Ryder J
18 January 2005
Expert evidence - Findings of fact - Munchausen's Syndrome by Proxy - Fabricated or induced illness - Inter-disciplinary management of cases
P, C AND S v UNITED KINGDOM
European Court of Human Rights
Mr J-P Costa, President, Mr AB Baka, Sir Nicolas Bratza,
Mr Gaukur Jörundsson, Mr L Loucaides,
Mr C Birsan, Mr M Ugrekhelidze, Judges,
and Mr TL Early, Deputy Section Registrar
16 July 2002
Care proceedings - Freeing for adoption - Legal representation - Arts 6 and 8 of European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
During the 1990s an American mother lost custody of her son and was convicted of an offence after it was found that she had deliberately caused the child's numerous illnesses by the administration of laxatives. She was required to undergo therapy for Munchausen Syndrome by Proxy (MSBP) and thereby met her second husband, a social worker who was carrying out research into that condition. They subsequently married in the UK and the mother became pregnant. The local authority learned of the pregnancy and received information about the mother's past from the American authorities. The local authority expressed concern about the risk of harm to the unborn child, a case conference was held and the mother and husband reluctantly agreed to assessment by an expert. The day the child was born she was removed to foster care under an emergency protection order and the parents and both sets of grandparents later had successful contact. Meanwhile the local authority's application for a care order was transferred to the High Court and both the guardian ad litem and psychiatrist reported that the parents posed a risk to the child. The care plan proposed that she be placed with an adoptive family as soon as possible. At the hearing of the care application the father withdrew from the proceedings, and the mother's legal team also withdrew on the basis that she was requiring them to conduct her case unreasonably. A second adjournment was refused and the mother, albeit distressed on occasion, proceeded to conduct her own case with the assistance of a McKenzie friend. A care order and a freeing order were subsequently made. The judge refused the mother leave to appeal and her renewed application in person before the Court of Appeal was refused. The court concluded that no error of law or any failure of procedural unfairness had been demonstrated. The child was adopted in March 2000 and no provision for future direct contact was made. The parents alleged that the removal of the child at birth and the care and freeing orders breached Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and that the procedures which followed were in breach of Art 6.
Held - unanimously finding violations of Arts 6 and 8 with respect to the removal of the child at birth, and Art 8 by six votes to one with respect to procedures concerning the care and freeing applications; unanimously holding that no separate issue arose under Art 12 and that damages were payable under Art 44 -
(1) The complexity of the case, importance of what was at stake and highly emotive subject matter led to the conclusion that the principles of effective access to the court and fairness required that the mother receive the assistance of a lawyer. The procedures adopted prevented the parents from putting forward their case in a proper and effective manner and although it was desirable for the child's future to be settled as soon as possible, the draconian action of proceeding to a full and complex care hearing, followed within one week by the freeing application, both without legal assistance, was not necessary. The parents did not have a fair and effective access to court as required by Art 6 as the possibility of some delay was not so prejudicial to the child's interests as to justify the procedure adopted and the assistance of a lawyer was indispensable.
(2) The local authority had to be able to take appropriate steps to prevent harm to the child and the decision to obtain an emergency protection order after her birth was necessary in a democratic society to safeguard her health and rights. However, there was no suspicion of life-threatening conduct from the mother immediately after the birth and it was not apparent why the child could not have spent some time with her in hospital under supervision. Removing the child from her mother after birth was not supported by relevant and sufficient reasons and could not be regarded as having been necessary in a democratic society for the purpose of safe-guarding the child. There was therefore a breach of the parent's rights under Art 8. The circumstances leading to a breach of Art 6, having regard to the seriousness of what was at stake, also prevented them from being involved in the decision-making process to a degree sufficient to provide them with the requisite protection of the interests under Art 8.
X COUNCIL v B (EMERGENCY PROTECTION ORDERS)
[2004] EWHC 2015 (Fam)
Family Division
Munby J
16 August 2004
Care - Human rights - Emergency protection orders - Care plans - Parental involvement in changes to care plan - Lacunae in EPO scheme
The eldest of the four children was seriously ill, and the local authority had concerns about the way in which the parents were caring for the entire family in what was acknowledged to be a stressful situation. Following a strategy meeting at which the mother was unwilling to discuss the situation of the children, the three younger children were taken into foster care under ex parte emergency protection orders (EPOs), each to last 8 days (the eldest child, then 17, refused to comply with the order relating to her). The local authority's stated aim was the organisation of medical examinations without any risk of parental interference. Interim care orders (ICOs) were obtained, and after just over a month in foster care the three children were placed with the maternal grandparents. It was eventually accepted that it was in the best interests of the three children, one of whom, aged 15, had already moved back to the parents' home against the wishes of the local authority, to return to live with the parents under a new interim care regime. Care plans presented to the court, which provided that if the authority were to remove the children first consideration would be given to placement with the maternal grandparents and that the local authority would endeavour to give the parents at least 24 hours' notice of removal unless the situation was deemed to be an emergency, were not approved by the court until the plans had been revised to provide that, if the local authority decided that the children should be removed from the parents' care, the matter would be put before the court for determination. Following successful rehabilitation to the parents under ICOs, the local authority sought an order giving it permission to withdraw its application for care orders.
Held - giving the local authority leave to withdraw its applications for care orders -
(1) There were occasions, albeit rare, in which, however desirable the pursuit of truth might be, it had to give way to a child's true best interests. This was a situation in which issues were best left unresolved by the judicial process, and ought to be consigned to resolution within the privacy of the family (see para [25]).
(2) The care plans originally presented to the court by the local authority had not been acceptable. It seemed that not all local authorities had yet appreciated the imperative demands of the Human Rights Act 1998, or yet adjusted their day-to-day practices to meet those demands. Repeating what had been said in Re G (Care: Challenge to Local Authority's Decision) [2003] EWHC 551 (Fam), a local authority, even if clothed with the authority of a care order, was not entitled to make significant changes in the care plan, or to change the arrangements under which the children were living, let alone to remove the children from home if they were living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision was made (see paras [29], [31]).
(3) A number of lacunae in the statutory scheme made it especially important that both the local authority and the justices in the family proceedings court (FPC) approached every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the human rights of both the child and the parents (see para [41]).
RE B (CARE: INTERFERENCE WITH FAMILY LIFE)
[2003] EWCA Civ 786
Court of Appeal
Thorpe LJ and Bodey J
21 May 2003
Care proceedings - Threshold met - Failure to apply welfare test - Judge must consider Art 8 rights of all family members before empowering authority to remove child - Wrong to put obligation on parents to apply to veto removal
In the course of confidential communication with her psychiatrist, a 22-year-old girl from an orthodox Hasidic Jewish family related that she and some of her sisters had had some sexual involvement with their grandfather. The psychiatrist informed a practising social worker who alerted the local authority. The local authority sought orders in wardship and subsequently invoked intervention under the public law provisions of the Children Act 1989, although no formal application was made. The judge ordered that there should be an interim care order in respect of each of the six minor children to the local authority. By way of a protective recital, the judge provided that the local authority would give the parents 48 hours' notice if they decided to remove the children, thereby giving the parents the opportunity to seek a judicial veto. The parents appealed the order on the grounds that there was no evidential basis upon which the judge could find that the threshold in s. 31 of the Children Act 1989 had been crossed, that the judge failed to consider the welfare exercise and that the judge was wrong in putting the obligation on the parents to apply to veto removal rather than requiring the local authority to apply for permission to remove the children.
Held - granting the parents' appeal and adjourning the application for an interim care order with liberty to the parents to apply on short notice -
(1) The judge had to exercise a broad and worldly judgment. While there were considerations going each way, he had been fully entitled to reach the conclusion that the s. 31 threshold had been crossed. His assessment of the value of the psychiatrist's reports was entirely legitimate (see paras [26], [32]).
(2) There was a vital judicial task between finding the s. 31 threshold crossed and endorsing the care order. Where the application was for a care order empowering the local authority to remove a child or children from the family, the judge in modern times could not make such an order without considering the rights of the adult members of the family and of the children of the family under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. He could not sanction such an interference with family life unless he was satisfied that it was both necessary and proportionate and that no less radical form of order would achieve the essential end of promoting the welfare of the children. The judge had failed to conduct this welfare exercise (see paras [34], [35]).
(3) The judge should have put the obligation upon the local authority to apply for permission to remove rather than on the parents to apply to veto the removal. The proper order was that the local authority's application for an interim care order should stand adjourned with liberty to apply on short notice (see para [36]).
Per curiam : the practical consequence of the local authority's failure to issue an application for the interim care order in the relevant family proceedings court was that the children were denied the advantage of representation in the proceedings. Neither a guardian nor a solicitor had been appointed for them. CAFCASS London arranged for a Jewish guardian to attend the appeal hearing on very short notice (see paras [15], [16]).
A COUNTY COUNCIL v A MOTHER, A FATHER AND X, Y AND Z (BY THEIR GUARDIAN)
[2005] EWHC 31 (Fam)
Family Division
Ryder J
18 January 2005
Expert evidence - Findings of fact - Munchausen's Syndrome by Proxy - Fabricated or induced illness - Inter-disciplinary management of cases
P, C AND S v UNITED KINGDOM
European Court of Human Rights
Mr J-P Costa, President, Mr AB Baka, Sir Nicolas Bratza,
Mr Gaukur Jörundsson, Mr L Loucaides,
Mr C Birsan, Mr M Ugrekhelidze, Judges,
and Mr TL Early, Deputy Section Registrar
16 July 2002
Care proceedings - Freeing for adoption - Legal representation - Arts 6 and 8 of European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
During the 1990s an American mother lost custody of her son and was convicted of an offence after it was found that she had deliberately caused the child's numerous illnesses by the administration of laxatives. She was required to undergo therapy for Munchausen Syndrome by Proxy (MSBP) and thereby met her second husband, a social worker who was carrying out research into that condition. They subsequently married in the UK and the mother became pregnant. The local authority learned of the pregnancy and received information about the mother's past from the American authorities. The local authority expressed concern about the risk of harm to the unborn child, a case conference was held and the mother and husband reluctantly agreed to assessment by an expert. The day the child was born she was removed to foster care under an emergency protection order and the parents and both sets of grandparents later had successful contact. Meanwhile the local authority's application for a care order was transferred to the High Court and both the guardian ad litem and psychiatrist reported that the parents posed a risk to the child. The care plan proposed that she be placed with an adoptive family as soon as possible. At the hearing of the care application the father withdrew from the proceedings, and the mother's legal team also withdrew on the basis that she was requiring them to conduct her case unreasonably. A second adjournment was refused and the mother, albeit distressed on occasion, proceeded to conduct her own case with the assistance of a McKenzie friend. A care order and a freeing order were subsequently made. The judge refused the mother leave to appeal and her renewed application in person before the Court of Appeal was refused. The court concluded that no error of law or any failure of procedural unfairness had been demonstrated. The child was adopted in March 2000 and no provision for future direct contact was made. The parents alleged that the removal of the child at birth and the care and freeing orders breached Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and that the procedures which followed were in breach of Art 6.
Held - unanimously finding violations of Arts 6 and 8 with respect to the removal of the child at birth, and Art 8 by six votes to one with respect to procedures concerning the care and freeing applications; unanimously holding that no separate issue arose under Art 12 and that damages were payable under Art 44 -
(1) The complexity of the case, importance of what was at stake and highly emotive subject matter led to the conclusion that the principles of effective access to the court and fairness required that the mother receive the assistance of a lawyer. The procedures adopted prevented the parents from putting forward their case in a proper and effective manner and although it was desirable for the child's future to be settled as soon as possible, the draconian action of proceeding to a full and complex care hearing, followed within one week by the freeing application, both without legal assistance, was not necessary. The parents did not have a fair and effective access to court as required by Art 6 as the possibility of some delay was not so prejudicial to the child's interests as to justify the procedure adopted and the assistance of a lawyer was indispensable.
(2) The local authority had to be able to take appropriate steps to prevent harm to the child and the decision to obtain an emergency protection order after her birth was necessary in a democratic society to safeguard her health and rights. However, there was no suspicion of life-threatening conduct from the mother immediately after the birth and it was not apparent why the child could not have spent some time with her in hospital under supervision. Removing the child from her mother after birth was not supported by relevant and sufficient reasons and could not be regarded as having been necessary in a democratic society for the purpose of safe-guarding the child. There was therefore a breach of the parent's rights under Art 8. The circumstances leading to a breach of Art 6, having regard to the seriousness of what was at stake, also prevented them from being involved in the decision-making process to a degree sufficient to provide them with the requisite protection of the interests under Art 8.
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