Court of Appeal allows appeal against order removing new-born baby after mother with learning difficulties not given opportunity to put her point of view

The Court of Appeal has allowed an appeal against an order for the separation of a new-born child from his mother, who has learning difficulties.

In D (A Child) [2021] EWCA Civ 787 Lord Justice Peter Jackson said that “unfortunately good plans were not made during the mother’s (V’s) pregnancy for what would happen after the baby (O) was born". As it turned out, the local authority found somewhere for them to be together, supervised by two or three adults all the time.

Meanwhile court proceedings started and the case came before the court on 11, 12, 13 and 14 May. O’s social workers did not feel that V could cope, even with support. An attempt to find somewhere for them to be assessed together was unsuccessful.

The next hearing took place on Wednesday 19 May. It was set up to consider the planning of the case, but on the night before the hearing the Children’s Guardian filed a document saying that she felt it wasn’t safe for O to stay with V.

She said that V might hurt O without meaning to because of clumsy handling and that V wasn’t following advice about that. She also thought O wasn’t getting enough warmth and close care from his mother and he badly needed this.

The Children’s Guardian told the court that O needed to be separated from his mother and looked after by a foster carer until better plans could be made.

On the morning of 19 May three more daily reports arrived. The picture was no better and in some ways maybe worse.

The local authority did not ask for immediate separation – at the start of the hearing its proposal was for the court to set up a hearing in two weeks’ time to make its decision. That was also what was asked for by counsel to V.

However, at 3.50 pm the local authority changed position to argue that O should be placed in foster care that evening.

The judge agreed, “though he wasn’t happy about it”, and made the order, Peter Jackson LJ said.

An urgent appeal was made to the Court of Appeal and a judge of that court made an order at 9 pm that O should not be removed that night. The following day Lord Justice Peter Jackson ordered that the request for an appeal should come before the court on 21 May.

Lord Justice Peter Jackson said the Family Court judge had carefully considered the cases about removing babies from mothers and about the need to support parents with a learning difficulty. “He certainly thought carefully about the situation and he was unhappy about the lack of support that V had being offered before the birth. He also thought that the local authority's position was confused. He gave a short judgment on Wednesday afternoon and helpfully wrote a longer one the next day so that we could know his full reasons.”

The judge’s reasons included that:

• O’s safety required removal from his mother’s care.
• He was particularly concerned by the absence of engaged parenting-affection towards O. Bonding between O and V seemed not to be happening at all.
• O remaining in his present milieu would leave him at risk of physical harm, albeit partly ameliorated by a team of carers, but also at risk of emotional and developmental harm by missing out on close, one to one parental care.
• The local authority had expressed utter pessimism as to the future. No suitable placements had been found that would accept O and V. The Guardian, in her experience, was of the view that was because they do not exist. The present plan - only ever intended as a stop-gap measure, or a bridge to an assessment facility - was not a viable one in the medium to long term.

The Family Court judge said: “With this terrible sense that V was being set up (unintentionally) to fail, along with the risks identified in relation to O, I took the view that his immediate removal was necessary for his safety.”

Allowing the appeal, Lord Justice Peter Jackson said: “The Judge was in a very difficult position, because the planning for O's arrival had not been as good as it should have been. The case was heard again and again because of the practical problems. This, I think, led to important planning being neglected because there were so many practical problems and court hearings. Still, if the Judge had made his decision after a fair hearing there would be no chance of an appeal succeeding.

“However, I think that the Judge should have thought more about whether the hearing really was fair to V and, if it wasn't, whether O's situation was really so bad that he needed to be taken away immediately even though the hearing had not been fair.”

Lord Justice Peter Jackson, with whom Lord Justice Males and Lady Justice Simler agreed, said he didn’t think that the hearing was fair to V.

“It wasn't set up to decide about O's removal – that was only put on the table by the Guardian the night before. No-one wrote down the arguments for and against taking O away or gave V the chance to put her side of the story. The local authority changed its mind at the very end of the hearing and it isn't clear who took that decision or why. All of that would be difficult for any parent to face, and V is not just any parent. She is someone with learning difficulties and it is only last week that her baby was born,” he said.

“Of course there can situations where the risk to a baby is so bad that the baby has to be removed on the spot and even, in extreme cases, without the mother even knowing that the order is being made. So in the end the question for us is whether the risk was so bad for O that V could not even be given a couple of days in which to prepare her case. The decision was taken after the Judge heard about V, but he never heard from V.”

Lord Justice Peter Jackson said he did not think that the situation on Wednesday afternoon was so bad that the Judge needed to take a decision there and then.

“As I say, I agree that there were risks that could lead a court to make that decision after a fair hearing. I also agree that the arrangements, with so many other people trying to help V look after O cannot continue much longer – they are only a holding position.

“However, once a baby has been removed from his mother in this sort of situation, it can be very hard to put them back together. So I think that V ought to have been given a chance to put her side of the story, even if that meant making the decision as little as a day or two later.”

Lord Justice Peter Jackson added: “In a nutshell, the risks for O weren't so bad that V should not have been allowed a normal hearing. None of this is a criticism of anybody, including the Judge, but I think that in making his decision he did not give enough thought to whether what was happening was fair all round.”

The Court of Appeal granted permission to appeal and allowed the appeal against the separation of O from his mother.

The local authority had said that in that case its plan would be to try to continue the high level of support with different carers and different accommodation.

The arrangements that the Family Court judge made for another hearing next Wednesday remained. The lawyers agreed to draw up short simple documents so that V knew the case that she had to answer at the hearing. “It will be up to the judge at that hearing whether the court needs to hear live evidence. If so, that will have to be carefully chosen because it is only a four-hour hearing. After that, the decision about separation will be entirely up to the Judge.”

Lord Justice Peter Jackson said later that the parties unhesitatingly agreed that there was no reason why the  Family Court judge should not continue with the case and several good reasons why he should. The Court of Appeal agreed.