A v East Sussex County Council & Ors: The cost of child protection

The case A v East Sussex County Council & Ors [2010] EWCA Civ 743 caused some headlines yesterday, for example in The Independent, and on the BBC. It concerned a mother whose two-month-old son was removed from her and taken into care because of fears which subsequently proved groundless. She then claimed damages under Section 7 of the Human Rights Act 1998 against both the local authority and the police. Her claim was dismissed and she sought permission to appeal. The Court of Appeal granted permission, but dismissed her appeal.

The circumstances were that on the 22nd December 2008 the mother alerted the emergency services to the fact that the child had stopped breathing, and he was then admitted to Eastbourne General Hospital. The medical staff two days later thought the child was fit for discharge, but there was a concern that the mother had reported two incidents of the child stopping breathing. Not only had no-one else seen any such incident but no explanation for it could be found. The consultant was anxious lest he had encountered an example of factitious illness and, as was his duty, he notified social services; the police were also informed.

The child actually remained in hospital until the 29th December, when he was removed from the hospital and from the mother by the police pursuant to Section 46 of the Children Act 1989, into foster care. At an inter-partes hearing before the Family Proceedings Court on 31st December the mother agreed to go with him into a mother-and-baby unit. The assessment there was positive, the mother and child returned home, and proceedings were discontinued.

The issue for the court was whether the local authority and the police had exercised their powers lawfully and proportionately. It is settled law that that removal of children should usually be effected pursuant to an Emergency Protection Order (EPO), and that section 46 should only be used where it is not practicable to execute an EPO (Langley -v- Liverpool City Council). The judge found that on the 29th December it was impractical to convene a Family Proceedings Court and that thus the Respondents were entitled to seek the exercise of powers under Section 46.

The medical opinion available on the 29th December was that it would not be advisable for the child to go home with his mother with no supervision other than from members of her family. The local authority could have obtained the mother's agreement to accommodate the child under Part III of the Act, but it appears that that agreement was not forthcoming. Had they taken no action, the mother would have been free to take the child from the hospital. The judge considered that they were justified in taking the action that they did, rather than risk leaving the matter until a family proceedings court could be convened. The Court of Appeal found that this was a view entirely open to the judge on the evidence he had before him.

However, whilst he was satisfied that the judge was on the evidence entitled to take the view that what occurred was in the circumstances neither unlawful nor disproportionate, Mr Justice Hedley expressed the view that things could have been handled rather better than they were, for example the police could have prevented the child's removal from hospital for a further two days, until the hearing on the 31st December (paragraph 23).

The concluding paragraph of Mr Justice Hedley's judgment is worth quoting in full:

"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 hand 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 lawfully and proportionately and that the exercise of such powers should be the subject of public scrutiny. This litigation demonstrates that child protection only comes at a cost: to an innocent parent who is subject to it based on emergency assessment of risk and to public authorities who have had to account in a judicial setting for their exercise of power. It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state."