Can the LA Remove Your Child From Your Care After a Final Care Order is Made?

What happens if the Local Authority (LA) want to remove your child from your care after a final care order is made?

Care proceedings can conclude on the basis that the children remain living at home or are returned to the care of parents but under a final Care Order. In this scenario the Local Authority continue to share parental responsibility for the children. The children remain subject to the Looked After processes and regular visits from their Social Worker. The final Care Order will remain in place indefinitely until it is discharged by the Court.

A difficult situation arises if Social Services change their plan for the children and propose that they should be removed from the care of a parent and placed either with a family member or possibly in foster care.

Parents who do not agree that the circumstances justify the children being removed from their care have the option of applying to discharge the care order under section 39 of the Children Act 1989.

However, this is not an option that is useful in an urgent situation because it takes time for the necessary reports to be written and evidence to be gathered. Also Legal aid is not automatically available.

 

What can the parents do to act quickly in this situation?

Injunctions under the Human Rights Act 1998

This issue was dealt with in the Matter of DE (A Child) in 2014. There were concerns about how DE’s parents would cope looking after him as both parents had learning disabilities. However, with a package of support and the help of extended family, DE was able to live with his parents from birth.

In November 2012 when D was aged 11 months, the court made a final care order supporting the LA plan that DE remain at home with his parents but subject to a care order. This would be kept under review – if all was going well, the LA might apply for a supervision order instead. If things were not going well, the LA would remove DE from his parent’s care.

The LA became increasingly worried about the care that DE’s parents were giving him, considering that the parents needed constant prompting about issues of safety both in and outside the home. In March 2014 the LA told the parents that they were going to remove DE in a month’s time.

The father applied for an injunction under section 8(1) of the Human Rights Act 1998 to prevent the LA removing DE as there was no urgent need to do so. The LA responded that they were entitled to act in this way as they had a care order and the responsibility of making decisions for the child had therefore passed to them; the court could only intervene if what the LA was doing was unlawful. The Judge felt he had no choice but to refuse the father’s application for an injunction and DE was removed.

The father appealed and Mr Justice Baker concluded that the first judge was wrong to say he could not go behind the care order. The court did have the power to make an injunction to stop the LA removing the child.

Although the LA has the power under section 33(3) of the Children Act 1989 to determine how others may exercise their parental responsibility for child, under section 33(4) they can only exercise that power if to do so is necessary to safeguard or promote the child’s welfare.

Therefore a LA should only remove a child from home under a care order if removal meets the requirement of necessity. If removal is not necessary, the LA are proposing to act in a way which breaches Article 8 of the ECHR – and the court has the power to stop them by way of injunction using the Human Rights Act 1998.

The court said:

34.  To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

 

35.  While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

 

36.  In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

The court ordered a further hearing in a few weeks’ time in order to consider whether DE should be returned to his parents’ care whilst all the necessary evidence was gathered to proceed with an application to discharge the care order.

 

Guidance from the court for future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give no less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

The case of K (A Child) [2018] EWCA Civ 2512 (08 August 2018)

This is a useful case to note criticism of the LA for failing to follow the protocol set out above, on the basis that they thought the situation was one of emergency. The court was clear that the LA must be prepared to justify their decision. Proportionality remains a key consideration and the court will need to balance the risks of harm caused by removal against risks of harm if child is left at home.

The court commented at paragraph 65 of the judgment that even when removal takes place as a stated emergency:

In the case of a true emergency, once the child in question has been removed there should, thereafter, be a rapid and thorough implementation of the applicable parts of the Re: DE protocol without having to wait for an application to discharge the care order being made. This is with a view to seeing whether the child can be returned home with different or further support or supervision pending a final hearing. It remains of considerable concern to me that, notwithstanding my order, no evidence has been produced in relation to the decision-making process in this case. I can, therefore, only conclude that the decision was made rapidly and has not been reconsidered since.

 

If you would like more information on Family Law proceedings and the Local Authority, please get in touch on 01283561531 or at j.taylor@timms-law.com

 

Jo Taylor
March 2020