Removal of children

When is removal of children negligent and/or a breach of their human rights? Steven Ford KC and Rose Harvey-Sullivan look at the lessons from a recent High Court ruling.

Judgment was recently handed down in ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) in which the local authority, along with the police, were successful in defending the claim. The Defendants were awarded their costs, to be enforced to a level of 5%.

Background

The claimants, a family of four, had contended that the defendants acted negligently and in breach of the family’s human rights by removing the two children from the parents’ care without notice and via the police’s protective powers pursuant to s.46 Children Act 1989. The defendants had acted on the basis of significant concerns from medical, education and social care professionals that the parents, particularly the mother, were fabricating or inducing illness (‘FII’) in both children. The children and parents were separated for several months and ultimately the Local Authority withdrew its application for a Care Order because the parents were working well with professionals to address concerns.

The claimants contended that the evidence available at the time of removal had not been sufficient to justify the use of s.46, and/or to separate the children and parents.

The children brought claims against the local authority in common law negligence and all four claimants brought claims against both defendants for unlawful interference with their Article 8 rights (there had been other claims pursuant to Article 6 and the Equality Act but these were abandoned during the course of proceedings). The parents further argued they had been wrongfully arrested and unlawfully detained by the police. All four claimants alleged they had suffered psychiatric injury as a result of the defendants’ actions.

Principles to be applied

This is believed to be one of the first reported civil trials of a case in which it is alleged that child protection professionals were negligent and/or in breach of claimants’ human rights by wrongly removing a child (as opposed to allegations of failure to remove, which have been litigated more extensively). Hill J considered the law to be applied when assessing claims of this nature.

Of particular note, she agreed with the local authority’s submissions that the Human Rights Act claim question of whether social workers ‘genuinely and reasonably believed’ they were acting in the least interventionist way available (the test for assessing whether there had been an unlawful interference with Article 8), whilst not the same as the Bolam Test (which was to be applied to the common law claim), raised very similar issues.

Outcome

Ultimately, the court found that the defendants had acted reasonably and in good faith in removing the children temporarily from the parents, and dismissed the claims.

The court accepted the local authority’s evidence that FII is an extremely rare and difficult area for social care professionals, in which particular care must be given to the question of when and how to involve the parents. The court further found that it is entirely acceptable for social workers to rely upon information provided to them by other child protection professionals e.g. paediatricians, when formulating their risk assessment.

The case illustrates the importance of expert evidence in cases such as this, and the pitfalls that can occur: the claimants’ social work expert, upon whom it was agreed they could rely for both the negligence and human rights claims, accepted in cross-examination not only that he had applied the wrong legal tests under common law, but that he had not properly considered Part 35 CPR and the accompanying documentation. This led the court to order extensive disclosure of his instructions and associated material that would otherwise have been privileged (and, arguably, should not have been sent at all), including chronologies and an advice note by junior counsel.

Costs

The Court heard argument and gave judgment in respect of costs. Applying Brown v Commission of the Police of the Metropolis [2020] 1 WLR 1257), the Court determined that whilst these were mixed claims such that QOCS did not automatically apply, pursuant to CPR 44.16(2)(b), the starting point should still be to consider whether the claims were, in the round, personal injury claims. If so, the Court should ordinarily allow a claimant QOCS protection pursuant to its general wide discretion. This approach should only be varied if there are ‘exceptional features’ of the non-personal injury claims.

In this instance, whilst the claim had initially been drafted widely, and the Claimants had sought a variety of non-personal injury remedies (including declarations under the HRA, amendments/destruction of records, just satisfaction, exemplary damages etc), by the time it reached trial, and as clarified in the Claimants’ opening submissions, the only claims ultimately pursued were for personal injury damages, special damages (limited), and aggravated damages. As such, this was, ‘in the round’, a personal injury case.

The only ‘exceptional feature’ that the Court identified was the serious impact that the Claimant’s expert evidence had on the proceedings; his fundamentally flawed evidence ‘had been relied on to found the Claimants’ case on liability and thus to support all of the non-personal injury claims […] which were maintained until relatively close to or throughout the trial. On that basis it is appropriate to take it into account in the exercise of the CPR r.44(16)(2)(b) discretion’ [para 62]. The Court made orders for costs in the defendants’ favour, to be enforced to the level of 5%.

Steven Ford KC and Rose Harvey-Sullivan are barristers at 7BR. They acted for Derbyshire County Council in this case.