R (on the application of G) v Nottingham City Council
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Year | 2008 |
| Court | Queen's Bench Division |
Child – Care – Local authority – Local authority instructing hospital staff to separate claimant from new born child immediately after birth – Authority giving instruction in absence of court order – Claimant seeking judicial review of removal of child and of pathway plan devised by local authority – Whether authority acting unlawfully – Children (Leaving Care) (England) Regulations 2001, SI 2001/2874, rr 5, 6, 7, Sch 2 – European Convention on Human Rights, art 8.
The claimant, aged 18, had been in the care of the defendant local authority. She had a history of alcohol and drug abuse and had previously self-harmed. She was a very vulnerable young adult. In 2007 she became pregnant. The baby was due to be born on 3 February 2008. It was accepted by the authority that the claimant was entitled to look to it for continuing care under the leaving care legislation. That legislation required 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 proposed to provide as the young person made the transition into adult life from having been a child in care. The claimant’s lawyers took the view that the pathway plan prepared by the authority had been so deficient and inadequate so as to be unlawful. Judicial review proceedings were issued. Those proceedings were due to be heard on 30 January 2008. However, unexpectedly, the claimant’s son, K, was born in the early hours of that morning. At about 4am, K was removed from the claimant and placed in a different room in the hospital. The hospital removed K pursuant to a ‘Birth Plan’ prepared by the authority. That document 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 provisions contained within rr 5–7 of, and Sch 2 to, the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874 (see (24]–[29]), and the unlawful removal of K following his birth fell to be determined. The NHS Trust was joined as an interested party to the proceedings relating to the removal of the claimant’s child. In relation to the claim concerning the pathway plan a number of concerns were raised by the claimant, including: (i) that the entire process should have been embarked upon earlier than it
was; (ii) that it was far from apparent that a proper process of assessment had ever been undertaken; and (iii) that the pathway plan exhibited failings of a kind described in previous judicial authority.
Held – (1) The statutory process envisaged two quite separate stages: first, the assessment, culminating (see r 7(3)(c)) in the preparation of a written record of the results of the assessment; and, secondly, the preparation of a pathway plan. Those were, not merely chronologically but also as a matter of substance, two entirely different exercises. The purposes of the assessment (see r 7(1)) was to ‘assess the needs of the child. The purpose of the pathway (see r 8(2)(a)) was to set out ‘the manner in which’ the local authority proposed ‘to meet the needs of the child’, that is the needs of the child as assessed during the course of the assessment. The authority’s duty during the assessment was not merely to identify the child’s needs—though that was presumably part of the process of assessing them- it was to ‘assess’ the child’s needs. ‘Assessment’ went beyond mere identification of needs; it involved analysis and evaluation of the nature, extent and severity of the child’s needs, a process which had to have gone far enough to enable a pathway plan to be prepared, setting out in sufficiently precise detail the ‘manner in which’ those needs were to be met. The circumstances of the instant case exhibited a serious failure by the authority to comply with its statutory duties and to heed relevant judicial authority. R (on the application of J) v Caerphilly County BC[2005] 2 FCR 153 applied.
(2) In the light of its previous concessions (see [2008] 1 FLR 1660), the authority had acted unlawfully in removing K from G in the absence of a court order, as had the NHS Trust involved. It had been incumbent upon the NHS Trust, when proposing to act as it did, to ensure that it was acting with lawful authority. Instead it had chosen simply to assume, on the mere say-so of a social worker, that what it was being asked to do was lawful. In those circumstances, it had to take the consequences of its imprudence. And the consequence, in the instant case, was that the NHS Trust was a joint wrongdoer with the authority, jointly and severally liable for the breach of art 8 of the European Convention on Human Rights to which, jointly with the authority, it was liable. Accordingly, the declaratory relief agreed between the parties would be granted. It is fundamental that the court does not grant declarations by consent. If the court is to make a declaration the court has to be satisfied on the facts and as a matter of law that the declaration is one that ought properly to be made.
Cases referred to in judgmentC (a minor) (interim care order: residential assessment), Re[1997] 1 FCR 149, [1996] 4 All ER 871, [1997] AC 489, [1996] 3 WLR 1098, HL.
F v Wirral Metropolitan BC [1991] 2 All ER 648, [1991] Fam 69, [1991] 2 WLR 1132, CA.
G (a child) (interim care order), Re[2008] EWCA Civ 86, [2008] All ER (D) 107 (Feb).
G (a child) (interim care order: residential assessment), Re[2005] UKHL 68,
[2005] 3 FCR 621, [2006] 1 All ER 706, [2006] 1 AC 576, [2005] 3 WLR 1166, [2006] 1 FLR 601.
HL v UK (2004) 81 BMLR 131, 17 BHRC 418, 40 EHRR 761, ECt HR.
L (a child) (adoption: disclosure), Re[2007] EWHC 1771 (Fam), [2008] 1 FLR 1079.
Midland Bank Trust Co Ltd v Green (No 3) [1979] 2 All ER 193, [1979] Ch 496, [1979] 2 WLR 594.
R (on the application of G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660.
R (on the application of J) v Caerphilly County BC [2005] EWHC 586 (Admin), [2005] 2 FCR 153, [2005] 2 FLR 860.
Storck v Germany (2006) 43 EHRR 96, [2005] ECHR 61603/00, ECt HR.
T (an adult: medical treatment), Re[1992] 2 FCR 861, [1992] 4 All ER 649, [1993] Fam 95, [1992] 3 WLR 782, [1992] 2 FLR 458, CA.
US v Dege (1960) 364 US 51, US SC.
Wallersteiner v Moir, Moir v Wallersteiner [1974] 3 All ER 217, [1974] 1 WLR 991, CA.
ApplicationThe Court of Appeal transferred care proceedings issued by the local authority, which the mother had appealed against, to the High Court on 7 February 2008 ([2008] All ER (D) 107 (Feb)). After the hearing in the High Court on 18 February 2008, the judge gave reasons for the orders in the care and judicial review proceedings. The facts are set out in the judgment.
Ian Wise and Caoilfhionn Gallagher (instructed by Bhatia Best) for the claimant.
David Lock and Shona Rogers (instructed by Lette Baker, Nottingham) for the defendant.
Marina Wheeler (instructed by Mills & Reeve) for the interested party in the care proceedings.
Rachel Rowley (instructed by Bhatia Best) for the applicant.
Brian Jubb (instructed by Jackson Quinn) for the first respondent.
Maria Mulrennan (instructed by Sheltons) for the second respondent
Beryl Gilead for the third respondent.
MUNBY J.[1] This matter first came before me on 30 January 2008. Following that hearing I handed down judgment on 4 February 2008: R (on the application of G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660.
THE BACKGROUND[2] I shall not repeat what appears in that judgment, save to note that it touched on three distinct matters:
(i) G’s claim for judicial review;
(ii) G’s claim that she had been unlawfully separated from her baby, K; and
(iii) the care proceedings in respect of K brought by the local authority.
[3] So far as concerns the claim for judicial review, I set out (at [1]–[3]) the background to G’s claim, identified (at [6]) the essence of the claim as being G’s complaint that the pathway plan which the local authority had prepared for her was so deficient and inadequate as to be unlawful, and indicated (at [31]) that I had given directions in relation to the future conduct of the proceedings. Included in the order I made was a direction listing the matter before me on 18 February 2008 for a permission hearing, coupled with a direction that if permission was granted the substantive hearing would follow immediately.
[4] So far as concerns G’s claim that she had been unlawfully separated from K, I set out (at [8]–[13]) the events which had triggered this complaint, recorded (at [14]) the local authority’s concession that what had happened was unlawful, and explained (at [15]–[27]) why that concession was properly made.
[5] So far as concerns the care proceedings I recorded (at [28]) the intention of the local authority to commence care proceedings and, in a postscript, recorded (at [39]–[40]) how the care proceedings had been heard by Judge Inglis in the Nottingham County Court on 31 January 2008 and 1 February 2008 and how, on the latter date, those proceedings had culminated in the making by Judge Inglis of an interim care order. I should also record that those proceedings took place in private. But at the end of the hearing Judge Inglis approved the publication of a press release in the following terms:
‘Under section 97 of the Children Act 1989 no person may publish material which is intended or likely to identify any child as being involved in proceedings under the Act. That provision of course applies in this case and nobody may publish such information.
There is information that the court is prepared to make public, provided that the restriction in section 97 as to anonymity is observed.
The court in these proceedings has not been concerned with the events which led to separation of [K] from his mother during the hours...
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