Court of Appeal rejects damages claim over use of emergency child protection powers

The Court of Appeal has dismissed an action for damages brought by a mother after her two-month-old boy was taken into care under emergency powers because of concerns over his safety that were subsequently shown to be without foundation.

In A v East Sussex County Council & Ors [2010] EWCA Civ 743, the appellant applied for permission to appeal against a judgement by HHJ Coltart on 2 December 2009 dismissing a claim for damages brought under s. 7 of the Human Rights Act 1998 against East Sussex County Council (ESCC) and Sussex Police.

The appellant was a young woman of 22 who gave birth to her first child in October 2008. The mother had had a difficult childhood, was an anxious mother and suffered post-natal depression.

The child was admitted into hospital on 22 December 2008 after she alerted emergency services that he had stopped breathing. The hospital decided that he was fit for discharge two days later.

However, there were concerns that it might have been a case of factitious illness. The doctor notified social services, and the police were informed.

On 29 December, the child was removed from hospital and the mother and placed into foster care. Two days later the mother agreed to attend a mother-and-baby unit with her child.

The unit’s assessment was positive and the child returned to his mother’s home. Proceedings were discontinued. However, the mother then launched a claim for damages under the HRA.

Giving the judgement, Mr Justice Hedley said the case raised “in stark form the question of the powers and duties both of the local authority and the police when confronted with a child at risk of significant harm where no orders are in place and time is of the essence.”

He acknowledged that it was “wholly unsurprising” that the appellant should have felt aggrieved and he sympathised with her plight.

However, he added: “On the other hand child protection is just that. It is protection from the consequences of perceived risk. There will be cases, as here, where either the risk was incorrectly perceived or did not eventuate.

“That of itself does not mean that protective measures were wrongly taken. It merely illustrates the price that sometimes has to be paid for having a child protection system and it is unfortunate that it was exacted from his appellant and her son.”

Mr Justice Hedley added that “nevertheless, because child protection powers can have draconian consequences, it is essential that they are exercised lawfully and proportionately”.

The judge acknowledged that there has been heightened public concerns about child protection and “it is not right to criticise ESCC for taking what with the benefit of hindsight might appear an unduly cautious or even heavy approach. In my judgement ESCC were entitled to conclude that the exercise of statutory powers was necessary to protect [the child]”.

Mr Justice Hedley also concluded that HHJ Coltart was entitled to take the view that it was impractical in the circumstances of the case to convene a Family Proceedings Court and that the authorities were therefore entitled to seek the exercise of powers under s. 46 of the Children Act 1989.

The judge took the view that permission to appeal should be given, but that the appeal itself should be dismissed.

But Mr Justice Hedley said he was left “with the distinct impression” that things could have been handled rather better than was in fact the case.

He outlined the approach should be taken in circumstances such as these. This would involve:

• Working, where possible, in partnership with a parent, even in an emergency. “Parents can with careful and sympathetic explanation be brought to agree to regimes of supervision, or to the child remaining in hospital or even to voluntary accommodation under Part III of the Act for a brief period”.
• Apprising the solicitor to the parents, particularly if he or she is available, of the local authority’s concerns and proposals, and inviting the solicitor to give advice to the parents. “Even where emergency powers are obtained under s. 44 or exercised under s. 46, least interventions are best”.
• Removing a child to a known destination (for example, a relative) is to be preferred to removal to a stranger. “If there is removal to a stranger, the parent should, in the absence of a good reason (eg irrational or abusive behaviour) be informed of the fact and be allowed to pass relevant information to the carer and speedy arrangements be made for contact.”
• If a court order has not been obtained or obtained ex parte, an inter partes hearing should be arranged as soon as possible. “The learned judge described a hearing two days hence as ‘creditable’ but it should also be the norm. It goes without saying that where practicable an order of the court should be sought in preference to the use of s. 46 powers.”

Mr Justice Hedley added: “Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow. If they take action which ultimately turns out to have been unnecessary, they will have caused distress to an already distressed parent.

“On the other had, they are also invested with or have access to very draconian powers and it is vital that, if child protection is to command public respect and agreement, such powers must be exercised proportionately and that the exercise of such powers should be the subject of public scrutiny.”

Lord Justice Jackson, who agreed with the judgement, criticised the litigation.

He said: “This is not a claim about the welfare of the child. All three parties are publicly funded. The costs to the public purse (approximately £80,000) exceed by an order of magnitude the modest damages which were in issue. Litigation of this nature hardly represents a wise use of public funds.”