Langley and Others v Liverpool City Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,Lord Justice Lloyd,Lord Justice Thorpe |
| Judgment Date | 11 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1173 |
| Docket Number | Case No: B4/2005/0713 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 2005 |
[2005] EWCA Civ 1173
Lord Justice Thorpe
Lord Justice Dyson and
Lord Justice Lloyd
Case No: B4/2005/0713
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MORGAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles RC Prior (for the 1st Defendant) (instructed by Liverpool County Council)
Graham Wells (for the 2nd Defendant) (instructed by Messrs Berrymans Lace Mawer)
Rajeev Thacker (for the Claimants) (instructed by Messrs Jackson & Canter)
Introduction
The Langley family live in Liverpool. The first and second claimants are the parents. They have four children. At the time that is material to these proceedings (September 2001), they were living together at 51 Sceptre Road, Liverpool. The three older children are James (then aged 9 1/2 years), Ryan (then aged 5 1/2 years) and Callum (then almost 4 years of age). The fourth child (Rebecca) who is not party to these proceedings was 2 months old. These proceedings concern the lawfulness of the removal of the three oldest children into the care of foster parents. Callum was removed from his home on 25 September and James and Ryan from the Royal School for the Deaf the following day. After a 5 day trial, His Honour Judge Morgan found that the first defendant ("the Council") had acted unlawfully in relation to the removal of all three children. He held that the Council was liable to all five claimants for assault and false imprisonment as well as for breach of their rights under article 8 of the European Convention on Human Rights ("the Convention"). He found that the second defendant ("the Chief Constable") had acted unlawfully in relation to the removal of Callum, and held that he was liable to Callum for assault and false imprisonment. But he dismissed the claims by the parents and Callum that the Chief Constable had violated their article 8 rights and also dismissed their claims that he had been negligent and committed the tort of misfeasance in public office.
Both the Council and the Chief Constable appeal against the findings of liability. Callum and the parents appeal against the dismissal of their claim that the removal of Callum was in breach of their article 8 rights. At the heart of these appeals lies an important question concerning the powers of the police under the Children Act 1989 ("the Act") to remove children who are in need of emergency protection. It concerns the relationship between sections 44 and 46 of the Act. The judge held as a matter of statutory interpretation that, once an emergency protection order ("EPO") has been granted under section 44 and as long as it remains in force, the police cannot remove a child to suitable accommodation under section 46.
The Facts
All the members of the family except Callum are profoundly deaf. Mr Langley also suffers from Usher's Syndrome which means that he has tunnel vision and night blindness. He was registered blind in 2000, and has been without a valid driving licence since September 1999.
The Social Services Department of the Council has had dealings with the family for a considerable period of time. There have been several problems and at the material time the three oldest children were on the Child Protection Register. A number of Child Protection Conferences had been held both in Devon (where the family had previously lived) and Liverpool. One particular concern expressed in the Conference Protection Plans was that Mr Langley persisted in driving a car with the children as passengers, despite the assurances that had been given by both parents that he would not do so. The judge accepted the evidence of the Social Services witnesses that he had driven the children fairly frequently. At the conference held on 6 August 2001, a Child Protection Plan was agreed which included the provision that "Social Services will instigate Care Proceedings in relation to the children, with the children remaining in the care of their parents subject to the Child Protection Plan."
This was the background to the events of 24, 25 and 26 September 2001. On 24 September, Mr Langley drove a Range Rover from Liverpool to Derby. In the car with him were Mrs Langley and the three older children. The purpose of the journey was to take Ryan and James to the Royal School for the Deaf for four days of assessment. Ms Patricia O'Brien is a social worker employed by the Supported Living and Community Safety Portfolio of the Council who had been involved with the family since March 2001. She used to visit them weekly, and on each occasion she mentioned her concerns about Mr Langley's driving. She received a message on 24 September from James Lynch, the Langley family support worker, that the family had gone to Derby and that their car was missing from outside the house. She contacted the school, who confirmed that Mr Langley had been seen driving into the school car park. She was told that Mr and Mrs Langley and Callum were not staying in Derby, but were intending to return to Liverpool and then go back to Derby on 27 th to fetch James and Ryan.
She contacted the Council's Legal Services Department on the morning of 25 September and instructed them to apply for an EPO. A without notice application was duly made to the Liverpool Family Proceedings Court. The reasons given in the application form for the existence of reasonable cause to believe that the three children were likely to suffer significant harm if not removed to accommodation provided by the Council were that:
"Mr Langley suffers from Ushers Syndrome and is registered blind. Despite this, he has driven the children to Derby. According to an independent witness he has continued to drive the children whilst in Derby. The family intend to return to Liverpool on Thursday 27 th September 2001. The local authority has grave concerns for the children's safety."
Ms O'Brien and her Team Manager Patricia McGaw attended court on the morning of 25 September. They both gave evidence in support of the application. At 11.20 hrs, the court granted an EPO in respect of all three children giving the Council parental responsibility and authorising them to remove the children to accommodation provided by or on behalf of the Council. The order was expressed to end at midnight on 3 October.
In fact, by the time the EPO had been granted, Mr Langley had driven Mrs Langley and Callum back to Liverpool, leaving the two older children at the school in Derby. Ms O'Brien attempted to execute the EPO by going to their home in Liverpool. But nobody was there and the car was not outside the house. The judge found that Mr and Mrs Langley were out in the car with Callum and Rebecca. Ms O'Brien said that, if the family had been present in the house, she would have sought the assistance of the police and asked them to accompany her when she executed the EPO: they were a volatile family and she would not have wished to act on her own.
Having failed to contact the Langleys during normal working hours, Ms O'Brien contacted the Council's Emergency Duty Team ("EDT") at about 18.00 hours. At her request, they arranged for foster parents to be alerted. Ms O'Brien then went to Walton Lane Police Station. She spoke to PS Ray Jones, told him of her concerns for the safety of Callum and requested police assistance to find the missing child. She handed PS Jones a copy of the EPO and told him that foster parents had been alerted to take Callum into their care.
At 19.20 hours, together with 3 other police officers PS Jones went to 51, Sceptre Road and found the family at home. Mr Langley opened the door and permitted PS Jones to enter the house. He showed Mr and Mrs Langley a copy of the EPO. Callum was then awakened and taken from his bed. The officer decided to call Social Services before deciding how to proceed. He spoke to the EDT who confirmed that they wanted Callum to be taken into care. In his witness statement he explains that he considered that he had to decide whether to leave Callum at home, or remove him. He decided to remove Callum to the foster parents. He said that his main concern was that Callum might not be safe if he remained at home. He had noticed that the bonnet of the car was warm when he arrived at the property, and thought that there was a risk that the Langleys would remove Callum by car. In view of this concern and the response of the EDT, he decided that the only way to ensure Callum's safety was to remove him to the foster parents. Together with two of the other officers, this is what he did.
The following morning, Ms McGaw met Mrs Langley and her sister at the Social Services offices. A sign interpreter was also present. Ms McGaw explained why the council had obtained the EPO. She discussed the situation and told Mrs Langley that Social Services intended to remove the two older children from the school in Derby into the care of the foster parents. She encouraged Mrs Langley to seek legal advice. On the same day, Ms O'Brien and Mr Lynch went to the school in Derby to remove James and Ryan. Once they discovered what had happened, the school decided that the children should leave as soon as possible. Ms O'Brien told the children that they would be staying with carers with whom they had stayed previously...
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