R (G) v Nottingham City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 04 February 2008 |
| Neutral Citation | [2008] EWHC 152 (Admin) |
| Docket Number | Case No: CO/532/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2008 |
[2008] EWHC 152 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Munby
Case No: CO/532/2008
Mr Ian Wise (instructed by Bhatia Best) for the Claimant (G)
Mr Bryan McGuire (instructed by Nottingham City Council, Legal Services) for the Defendant (local authority)
Hearing date: 30 January 2008
On 30 January 2008 I made a peremptory order requiring a local authority and a hospital forthwith to reunite a newly-born baby with his mother. The hearing took place in open court and attracted widespread media attention. In the circumstances, and because the point at issue is one of fundamental importance, it is right that I now explain the background to the application and why I made the order.
G was born on 31 May 1989, so she is 18 years old. She has had a sad and troubled life. She has been in the care of Nottingham City Council. She has a history of alcohol and drug abuse. She has self-harmed. She is a very vulnerable young adult. In 2007 she became pregnant. The baby was due to be born on 3 February 2008.
The local authority accepts that, although she is no longer a child – in the eyes of the law she is now an adult – G is entitled to look to the local authority for continuing support under the leaving care legislation. That legislation requires the local authority to carry out appropriate assessments and to produce a pathway plan identifying the young person's needs and the financial, practical and other support which the local authority is proposing to provide as she makes the transition into adult life from having been a child in care.
The pathway plan has to be in accordance with regulation 8 of the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874, and must, in particular, include the matters referred to in the Schedule to the Regulations.
Many children who have been in care suffer disadvantages of many kinds, and G is no exception. Indeed, her problems are vastly greater than many. So a pathway plan is always a vital tool – in G's case a more than usually vital tool – in helping the transition to independent living as an adult.
In G's case her lawyers took the view that the pathway plan which the local authority had prepared for her was deficient and inadequate, so deficient and inadequate, they assert, that it is unlawful: see R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860. That complaint, I emphasise, has not yet been adjudicated.
An application for judicial review was issued in the Administrative Court on 18 January 2008 accompanied by an application seeking urgent consideration. The papers were put before Davis J on 21 January 2008. He directed an interim hearing, to be listed not before 30 January 2008 so as to give the local authority at least some time to respond. In accordance with that order G's application for permission to apply for judicial review and for urgent interim relief was listed before me in the Administrative Court for hearing in the usual way in open court on Wednesday 30 January 2008.
Unexpectedly, and, as it happened, the day before the judicial review proceedings were due to be heard, the mother went into labour. She gave birth in the small hours of Wednesday at about 2am. Her son was born seemingly healthy and well. At about 4am her son was removed from her and placed in a different room in the hospital.
The application for judicial review came on for hearing before me later that morning. Mr Ian Wise, appearing for the mother, told me that he wished to make an application for an immediate order that the mother and her son be reunited. Their separation, he said, was unlawful, having been done without any legal authority and in breach of the rights of both the mother and the baby under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 requires all public authorities to “respect” the family and private lives of individuals.
I adjourned briefly to enable Mr Bryan McGuire, who appeared for the local authority, to obtain instructions and to produce any documents that might throw light on what had happened.
When the case resumed I was shown a number of documents. Two in particular were important.
The first was the minutes of an inter-agency child protection conference which had taken place on 18 December 2007. The minutes record the conference recommendation, inter alia, that the local authority “apply for an Interim Care Order once the child is born [and] organise a care placement for when the child is born”. They recite that “the birth plan for the baby is to remain in hospital until he is taken into foster care”, further noting that
“the baby must not be removed from the ward by [G] … if necessary an Emergency Protection Order should be sought if the Interim Care Order is not in place.”
The minutes further record the recommendation that what was described as “details of the agreed birth plan” be sent to all hospitals in the region.
The other document was the 'Birth Plan' prepared for the medical staff at the hospital by Nottingham City NHS Primary Care Trust. Referring to the child protection meeting that had been held on 18 December 2007, the Birth Plan said that “Baby is to be placed in foster care.” In relation to delivery in hospital it said “please discuss with [G] at delivery if she wishes to see or hold baby.” It continued:
“Baby will be removed at birth and there will be no contact without supervision … The baby will not … be left in her sole care … Further contact with baby on the ward will be supervised by Social Services.”
There was no reference in that document to obtaining any emergency protection order or interim care order. So the need for one or other of those steps to be taken if the child was to be removed from G was not brought to the attention of the midwives and other medical staff to whom the document was addressed.
Mr McGuire realistically accepted that he could not, as a matter of law, justify what had happened. Accordingly I made an order (see below) that G and her son be reunited. I was subsequently told that within minutes of my making that order they were indeed reunited – shortly after mid-day the same day.
The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step: either an emergency protection order in accordance with section 44 of the Children Act 1989 or an interim care order in accordance with section 38 of the Act or perhaps, in an exceptional case (and subject to section 100 of the Act), a wardship order made by a judge of the Family Division of the High Court.
Section 46 of the Children Act 1989 permits a police constable to remove a child where he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm, and that power can be exercised without prior judicial authority. But the powers conferred on the police by section 46 are not given to either local authorities or social workers.
Local authorities and social workers have no power to remove children from their parents unless they have first obtained judicial sanction for what they are proposing to do. Only a court can make a care order. Only if a court has authorised that step, whether by making an emergency protection order or by making a care order or an interim care order or in some other way, can a local authority or a social worker remove a child from a parent. And the same goes, of course, for a hospital and its medical staff.
As I said during the...
To continue reading
Request your trial
-
Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)
...of either an emergency protection order or a care order, a local authority has no power to remove a child from its parent: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, esp at paras [15]–[17], and R (G) v Nottingham City Council and Nottingham University Hospi......
-
Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)
...order or a care order, a local authority has no power to remove a child from its parent: R (G) v Nottingham City CouncilUNK[2008] EWHC 152 (Admin), [2008] 1 FLR 1660, especially at paras [15]-[17], and R (G) v Nottingham City Council and Nottingham University HospitalUNK[2008] EWHC 400 (Adm......
-
R (on the application of G) v Nottingham City Council
...made no reference to the obtaining of any emergency protection or interim care order. Following a previous decision of the court (see [2008] 1 FLR 1660), inter alia, the claimant’s application for judicial review in relation to the alleged unlawfulness of the pathway plan, contrary to the p......
-
Williams and another v London Borough of Hackney
...also gave detailed guidance about how it should be obtained. 22 These began with two judgments of Munby J (as he then was) in R (G) v Nottingham City Council [2008] EWHC 152 (Admin); [2008] 1 FLR 1660 and [2008] EWHC 400; [2008] 1 FLR 1668. The context was the removal of a new born baby fr......