Children And Care Team Newsletter
Autumn 2014

Article 1 - Re D (2014) EWHC 3388 – (Nothing else will do revisited, and adoption not approved for a 2 year old boy) - Anthony Hand

The facts of this care case are important, and not that uncommon any more. D was aged two years old. He had been born to a Czech parents. In the care proceedings in this country, the Local Authority and the Guardian were at one in that they were suggesting that care and placement orders should be granted.

However, on the other hand the parents argued that D should be returned to their care and it was their plan to go home to the Czech Republic. They had the support of Czech social services, and of a psychotherapist who said she could work with the family in the Czech Republic. If D was with his parents he would have the additional advantage of being brought up to know and participate in his cultural background as a Czech Roma boy. The Local Authority, for obvious reasons, accepted that in this country they would not be able to place D in a family where his ethnical background could be matched.

In addition there were two middle courses available. The first was leaving D with his current foster carers under a Special Guardianship Order. (COMMENT – I really liked the Judge’s description of a SGO – “Special guardianship of course endows the guardian with super-parental responsibility but does not formally extinguish the parental responsibility of the parents which lies fallow in a sort of symbolic state.”). The second middle option was a long term foster care placement in the Czech republic.

On the evidence the court discounted a placement of D in Poland with the parents. The risks would be too great. However, what followed next was in my view slightly unexpected (but a sign of things to come?) Mr Justice Moor quite rightly reminded himself of the case of Re B-S – placement for adoption should only occur if nothing else will do. So the question then became will a SGO placement in England or a long-term fostering placement in the Czech Republic “do”? The judge in fact decided that a SGO placement with the current foster carers or a long term fostering placement in the Czech Republic would in fact “do” very nicely for this two year old boy.

Moor J described the advantages of adoption in this country as a “truism”. However, he went onto to point out that our practice of forced adoption is unusual in Europe: “The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.”

At the end of the day I think it was D losing touch with his Czech/Roma background that swayed the judge, as well as (and intricately connected with) considerations of never seeing his birth family again. The court directed that SGO with the current foster carers was the best way forward with exploration of long term foster care in the Czech Republic a close second.

Article 2 - The current state of Legal Aid in family cases – a personal rant - Anthony Hand

As I write this article, I am about to go on my summer holiday. I am probably past my “sell by date” and I am generally hacked off. Over the last few weeks (or I should say months or weeks) the funding of Children Act proceedings (or I should say the lack of it) has been particularly irksome for me.

In the recent decision of the President in Q v Q and others (2014) EWFC 31, three private law cases were heard together. They all concerned the situation where the mother had the benefit of public funding but the father did not. As we are all aware by virtue of s.9 of Sch. 1 of LAPSO public funding is generally not available for private law proceedings, but there is provision where the one party is able to show that they have been subject to domestic abuse. So typically mothers, who can show that they were subject to abuse, may still be able to obtain legal aid.

At the time of the bill being debated, this produced calls saying this was unfair to fathers. A mother could allege DV, obtain funding, but the father would be left unrepresented. In order to even things up s.10 of Sch. 1 allowed for there to be a grant of public funding in private law cases in “exceptional circumstances”. The Lord Chancellor gave guidance that the discretion to allow funding should be “used in rare cases” (note the absence of the would “very” before rare). But what does this mean on the ground?

A freedom of information request was made to find out how many exceptional cases were actually being funded. The answer was that the LAA had granted funding to 8 or 9 cases a year! A government spokesman said “ we are satisfied that the system is working in accordance with the section”. But if public funding is only granted under s.10 in 8 or 9 cases a year how can this be fair? How can this said to be a working system? Further, where is the logic? One hopes that after the President’s decision in Q v Q the discretion to permit funding under the “exceptional” category will henceforth be used more liberally, but I will not hold my breath.

On a similar theme, also highlighting the lack of logic in LAA funding, experts instructed in care proceedings at the end of last year had a marked and somewhat arbitrary reduction in their fees. For example a consultant paediatric expert based outside London is allowed £108 per hour, whereas one based in London is permitted only £72 ph. The reason for the distinction is that apparently this can be justified on the basis of the market economy. London is awash with doctors willing to work for £38ph less than a doctor is Reading or Slough, it is said.

Is it me, or in reality are there no paediatricians willing to accept instructions at the inside London LAA rates? It is hard enough to find an expert willing to work for the outside London rates. But why should I worry? Either way the expert’s hourly rate is greater than my own! However, without adequate funding the system breaks down. Reports are not written. Issues are not fairly disposed of. Ultimately, children would go unprotected and unserved by the system if local authorities were unwilling to step in and just sometimes agree to make up the shortfall in fees. This willingness to help, of course, cannot be the solution to the problem.

So, just on the verge of going on holiday, the temptation just to stay in Norfolk, become a deck chair ticket seller and never come back is a great one. However, the thing that keeps the heart of the child care / family law system going is that by and large it is staffed by good people. Be they social workers, guardians, lawyers or judges. These are people who are dedicated to the system. We get out of bed to see if me might make a small difference each day. On that basis, being a deck chair attendant may have to wait for another summer, but I do not think that we should stop complaining.

Article 3 - Intractable Contact Disputes: The Good, the Bad and the Ugly - Anthony Hand

Introduction:

An overview of when love turns to hate, and passions overspill into the arena of contact. What happens where one party blindly refuses to provide contact under any circumstances? Are they right to do so, or just acting irrationally? What happens to the child lost in the middle, and will the proceedings ever end? This paper gives an overview of intractable contact disputes. Topics covered will include:

  • A review of all relevant law
  • When should an expert be instructed, if so of what discipline, and what should they examine?
  • Could mediation or ADR help?
  • Should the child be joined as a party?
  • Is a change of residence order realistic? Or is an order prohibiting face to face contact warranted?
  • What if intractable private law proceedings turn into public law proceedings?

Generally, how to achieve the best outcome for the client (and the child)?

1.1 Intractable contact disputes – the features

  • High parental conflict,
  • The resident parent is usually the one implacably hostile to the other parent (but it may be the other way round),
  • The conflict turns into litigation that may well take several years to complete,
  • Achieving compliance with court orders around contact proves to be a considerable challenge,
  • The children may well become alienated from their non-resident parent creating a problem for the court in undertaking a reliable assessment of the child’s wishes and feelings.

2.1 What is the court to do in these circumstances?

On the one hand there are decisions setting out that the court must doing everything in its power to work through the implacable hostility and to untie the contact dispute. Eg:

“It is…most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”, per Dame Butler-Sloss P in Re S (Contact: Promoting Relationship with Absent Parent) (2004) 1 FLR 1279

“72. Weighing up matters, my conclusion is that it is unacceptable from the point of view of the boys welfare in the short, medium and long term for them to be deprived of family relationships that are essential for their development as balanced young people, and as adults. Although leaving the children to grow up in relative isolation of their mother’s home is the easier short term solution, it does not provide the foundations that they need for a healthy, rounded future.

73. It is also, as I have noted , bad for the children to be taught that the sort of manipulation that they have been caught up in succeeds. That would be a lesson in injustice. The courts have repeatedly concluded that it is in their interests to see their father and it is plainly wrong for them to learn that decisions of this kind can be ignored or defied, as is now happening.

74. Although the boys are of an age where their views have to be taken seriously. I am not deterred by what they say they want to happen. This is not to disrespect them, but to respect them by treating them as children who have no way of dealing with this sort of pressure. A true appreciation of their wishes and feelings points towards the restoration of their relationship with their father, not its abandonment.” P Jackson j. Re M (Contact) (2013) 1 FLR 1403.

(N.B. The boys in this case were aged 8 and 10 years).

2.2 But on the other hand is the desire to continue to struggle on in proceedings worth it? Doesn’t sometimes a pragmatic view have to be adopted? Can the Court actually achieve change?

2.3 In Re A (A child) (2013) EWCA Civ 1104 there were 82 orders made by the first instance judges, at least seven judges had been involved from time to time at first instance, there had been 10 Cafcass officers. The children had been represented by NYAS. Various social workers had been involved. The proceedings by the time of the appeal had lasted seven years! It is, in the circumstances, entirely understandable that the judge at first instance dealing with the “final” hearing felt that the statistics provided “the best evidence that there has been systematic failure in this case”.

2.4 On a similar theme, by the time of the final hearing in Re G (A child – intractable contact) (2013) EWHC B16 (Fam) there had been over forty court hearings. The first instance judge was left with a “feeling of failure on the part of the Family Justice System”.

2.5 Although it is wrong to make generalizations, at some point down the line in litigation, the Court will often conclude that the absent parent is “unimpeachable” (i.e the good one), also that the resident parent has no justification for withholding contact (the “bad” – but more usually sad or damaged), and then the remainder of the case is dealt with trying to unravel the unholy mess that exists on the ground surrounding the child (“the ugly” mess surrounding the child). As ever, some cases have a successful outcome but many do not.

2.6 A good example of the determination of the courts to try and establish contact on the one hand, and yet the Court’s resignation that those efforts may come to nothing, comes from McFarlane LJ’s judgment in Re A (a child) above:

“39. Where, as in the present case, there is an intractable contact dispute, the authorities indicate that the court should be very reluctant to allow the implacable hostility of one parent to deter it from making a contact order where the child’s welfare otherwise requires it (Re J (A Minor) (Contact) (1994) 1 FLR 729. In such case contact should only be refused where the court is satisfied that there is a serious risk of harm if contact were to be ordered (Re D (Contact : Reasons for Refusal) (1997) 2 FLR 48). It is however to be noted that in each of the two cases to which I have just made reference the Court of Appeal upheld a “no contact” outcome, with the consequence that these oft quoted statements are in fact obiter. Further, in Re J , where contact was refused in order to avoid placing the child in a situation of stress as a result of the mother’s implacable hostility to contact, Balcombe LJ rightly acknowledged that affording paramount consideration to the child’s welfare may, in some cases, produce an outcome which is seen as “an injustice” from the perspective of the excluded parent:

“…the father may feel that he is suffering injustice. I am afraid to say that I think he is suffering an injustice, but this is yet another example where the welfare of the child requires the court to inflict injustice upon a parent with whom the child is not resident”.

3.1 The starting point remains the welfare principle – The legal context within which the decision to make any order under CA 1989, s.8 relating to the arrangements for residence and contact for the child is well established. At all times the child’s welfare must be the court’s paramount consideration (CA 1989 , s.1). When considering making, varying or discharging any such order the court must have particular regard to the matters listed in the “welfare checklist” at CA 1989 , s.1(3), which includes at s.1 (3) (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding). The court must have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child (CA 1989, s1(2)) and the court must not make any order unless it considers that doing so would be better for the child than making no order (CA 1989, s.1(5)).

3.2 But the wishes and feelings of the child has, as ever, to be seen in context and in light of their age and understanding. The “context” is particularly relevant. All too often the child’s expressed wishes may be influenced directly or indirectly by the actions of the primary care giver who is implacably hostile to the other parent. Equally, to state the obvious, children are still children. As Baroness hale put it in Re D (a child) (2006) UKHL 51; (2007) 1 AC 619:

“As any parent who has ever asked a child what he wants for his tea knows, there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quire capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parent’s views”

4.1 How can the courts best approach intractable contact cases? In Re L-W (Enforcement and committal: contact) (2010) EWCA Civ 1253 Munby LJ (as he then was) tried to give some guidance on how the judiciary should best approach such cases. He stressed the need in an intractable contact case for:

  • judicial continuity,
  • judicial case management including effective timetabling,
  • a judicially set strategy for the case; and
  • consistency of judicial approach.

4.2 All of the above makes good sense. Like a care case, one should try and timetable a case through as far as possible. The same judge dealing with all hearings will have a better feel for the parents, and therefore the issues.

4.3 McFarlane LJ agreed in Re A (A) with the President’s suggestions:

“60…In doing so I would stress the latter two elements in the judicial armory that I have listed. The need for the single judge who has charge of the case to establish a 'set strategy for the case' and to stick consistently to that strategy, so that all parties and the judge know what is happening and what the court plainly expects will happen, cannot be understated. If, as part of that strategy, the court makes an express order requiring the parent with care to comply with contact arrangements, and that order is breached then, as part of a consistent strategy, the judge must, in the absence of good reason for any failure, support the order that he or she has made by considering enforcement, either under the enforcement provisions in CA 1989, ss 11J-11N or by contempt proceedings. To do otherwise would be to abandon the strategy for the case with the risk that a situation similar to that which has occurred in the present case may develop; to do otherwise is also inconsistent with the rule of law.

61. The first time that a judge should give serious consideration to whether or not he or she will, if called upon, be prepared to enforce a contact order should be before the order is made and not only after a breach has occurred. Such forward thinking should be part of the judge's overall strategy for the case. If a directive contact order is called for, then, on making it, the judge should be clear, at least in his or her own mind, that, upon breach, enforcement may well follow. If, on the facts of the case, enforcement is not to be contemplated, then an alternative judicial strategy not involving a directive court order (and which might in an extreme case include a change of residence or, at the other extreme, dismissing the application for contact) must be developed. The error by HHJ Goldsack that I have already identified in deciding whether or not to 'attach a penal notice', when now, as a matter of law, all contact orders are to contain a warning notice as to enforcement (CA 1989, s 11N), is not a minor technical error. It is an error that, with respect, indicates a misunderstanding of the nature of the task of making a directive contact order in the first place. Under the modern law, the judicial discretion is not whether or not to attach a penal notice, it is whether or not to make the contact order itself.

62. Finally, in terms of the judge's 'what if' list, I would share his questioning of the period during which the court endorsed a recommendation for contact to proceed at M's pace and on her terms. Such an approach was rightly held to be generally inappropriate by this court in Re S (Contact: Intractable Dispute) [2010] EWCA Civ 447; [2010] 2 FLR 1517.”

4.4 N.B. In Re L-W Munby LJ encouraged practitioners not to try and seek transfer of intractable contact cases to the High Court. Firstly, transferring the case would probably fall foul of the rule that judicial continuity was best. Secondly, he made the point that the High Court had no better resources than what was then the County Court.

5.1 – If all else fails – desperation Plan A - applying for the child to live with the other parent. – In the right circumstances this can work, but the circumstances must be correct (it has worked for me on a few occasions). The non-resident parent is going to have to be able to prove that they are in a position to care – ie the father (usually) will need to show that he can alter his work commitments to cater for being a primary care giver. The child also probably needs to be at least open to this change taking place. Thirdly, the father will have to prove that if there was a change in where the child lived that he would be able to promote the mother in a positive light, to promote contact to her, and ensure in this way (unlike the status quo) that the child can grow to know both his/her parents of the child takes place. Probably, the father will also have to prove that there is no other viable alternative.

5.2 Such changes in where a child lives do take place in intractable contact cases, but usually only after a lot of litigation, time and money has flowed under the bridge.

5.3 But even if such applications are made they may not, of course, succeed.

5.4 Even if the Court orders a change in who the child is going to live with, enforcing that order may well be a completely different kettle of fish. In Re S (Transfer of Residence) [2010] EWHC 192 (Fam); [2010] 1 FLR 1785, which was heard by HHJ Clifford Bellamy sitting as a deputy High Court Judge, a transfer of residence was granted. The first application for contact had been made when S was a year old and the proceedings had been ongoing for 10 years. The father had not had contact for over two years and S was aged 11. The mother was implacably hostile to contact and the court had held that S had suffered emotional harm as a result of the protracted contact dispute. At the time of the hearing, S was refusing to see his father. In the event the judge, contrary to the firm recommendation of the guardian, made an order transferring residence from the mother to the father. In doing so, and amongst a range of factors considered, Judge Bellamy noted S's strongly held views and held that those views were entitled to respect. However the judge accepted the expert evidence that, as a result of alienation, not only where the child's views irrational they were also unreliable; in doing so the judge relied, in part, on objective evidence that S seemed relaxed and happy when he had been having contact with his father. The mother's application for permission to appeal the residence order determination was refused by Wall LJ ([2010] EWCA Civ 219), although, in the event, the practical attempts to achieve a change of residence failed (Re S (Transfer of Residence) [2011] 1 FLR 1789) – ie the child stayed with the mother in the end!.

6.1 – If all else fails – desperation Plan B – applying for the caregiver’s committal to prison – The father may well want to apply for the mother’s imprisonment at the earliest opportunity. However, this really is a remedy of last resort. One has also to consider, what will it actually achieve? (Unlike desperation Plan A above which has worked for me in the past, I have never been successful in sending a primary care giver to prison).

6.2 In Churchard v Churchard [1984] FLR 635 Ormrod LJ expressed himself (at page 638) in trenchant terms:

"To accede to the father's application for the committal order would not conceivably be in the best interests of the children. It would mean two things: first, if committed, that their mother would be taken away from them for a time and their father would be branded in their eyes as the man who had put their mother in prison. That is a brand from which no parent in my experience can ever hope to recover. It is the most deadly blow a parent can inflict on his children. There is no doubt and it should be clearly understood – I am speaking for myself now – throughout the legal profession that an application to commit for breach of orders relating to access (and I limit my comments to breaches of orders relating to access) are inevitably futile and should not be made. The damage which they cause is appalling. The damage in this case which they have caused is obvious. To apply for a legalistic but futile remedy, because it is the only thing left to do, is, in my judgment, the last hope of the destitute. The court is only concerned with the welfare of the children and ought not to trouble itself too much about its own dignity. These cases are exceedingly intractable. They can only be dealt with by tact not force. Force is bound to fail."

6.3 Ormrod LJ's approach was doubted by Ward LJ, with whom Beldam LJ agreed, in A v N (Committal: Refusal of Contact) [1997] 1 FLR 533. Dismissing a mother's appeal against the activation of a suspended committal order, Ward LJ observed (at page 540) that the welfare of the child, although obviously a material consideration, was not in this context paramount. Referring to the observations of Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions) [ 1995] 2 FLR 124 and of Sir Stephen Brown P in Re F (unreported, 13 May 1996), Ward LJ said (at page 541): "The stark reality of this case is that this is a mother who has flagrantly set herself upon a course of collision with the court's order ... In my judgment, it is time that it is realised that against the wisdom of the observations of Ormrod LJ is to be balanced the consideration that orders of the court are made to be obeyed. They are not made for any other reason ... it is perhaps appropriate that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If she goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child which is imposed upon him by Parliament." Beldam LJ said much the same, commenting (at page 542) that:

"the court has been placed by the mother in a situation in which it either has to yield to her obstinacy and back down from its own order or it has to enforce it. If the court were to yield to such persistent intransigence, respect for its orders and for the administration of justice would be at an end."

6.4 In B v S [2009] EWCA Civ 548, a case where Wilson LJ, with whom Ward LJ agreed, said (para [16]): "The days are long gone when mothers can assume that their role as carers of children protects them from being sentenced to immediate terms of imprisonment for clear, repeated and deliberate breaches of contact orders."

6.5 Lastly, Munby LJ in Re L-W (above) – “For my part, and I wish to emphasis this, I agree entirely with the approach adopted in A v N, in Re S and in B v S. Committal is – has to be – an essential weapon in the court's armoury in cases such as this. Nothing in this judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including, where appropriate, by means of committal.”

(Of course, without resorting to changing where a child lives or applying for committal there are softer enforcement alternatives open – eg enforcement orders. Enforcement orders fall outside the scope of this document, but must not be forgotten – see Re L-W for further analysis).

7.1 When are experts necessary? One embarks upon litigation hoping that it will resolve, but a time may well come when the penny drops and you realize that you are in the middle of an intractable contact dispute. At that point the sooner one considers the question of experts the better. Common issues that arise surrounding experts are as follows:

  • Discipline of the expert – usually a psychologist to assess the intractable care giver who illogically refuses to provide contact, or a psychologist to carry out a wider family assessment, or may be a consultant psychiatrist to assess the emotional needs of the child and the respective parents abilities to meet those needs. Not all cases need an expert! For some an expert is essential!
  • Is the expert “necessary” for the purposes of Part 25?
  • How will the expert be funded?
  • What impact will the instruction of the expert have on the progress of the case – how long will the report take?

8.1 Does the child need to be separately represented? Once again it depends on the facts of any particular case, but this is an option that must be considered and kept under review. If the child is to be represented should they be represented through Cafcass, or would a body like NYAS be more appropriate?

9.1 Can intractable contact disputes turn into care proceedings? They certainly can is the answer. Eg Re Z and A (2000) (Contact: Supervision Order) 2 FLR 406. 
A Charles J. case where the conflict between separated parents gave rise to significant emotional harm to the children, and grounds for public law orders.

10.1 What advice to give the client? It must depend on the circumstances of the case, but when one knows that you are in the middle of an intractable contact dispute I think it is important to consider imparting the following:

(a) Litigation in this area can be very long and very expensive.

(b) Don’t forget to tell them that exceptionally costs orders can be made.

(c) Is there a solution to the problem that whilst they may not be “happy” with, they could at least live with?

(d) They may have tried mediation in the past, but as the months (or years of litigation tick by) is it worth trying to talk things through again?

(e) At the end of the day, whilst you are there to help them to the best of your abilities, this is a very difficult area of law to predict an eventual outcome in. My legal crystal ball is generally somewhat misty, if not downright cloudy, in these cases.

(f) Keep good attendance notes!

Article 4 - Removal of children from the care of their parents - Jason Hughes

Practitioners who do care proceedings will no doubt be fully aware of the changes to the Public Law Outline and in particular the timetable for children such that care proceedings should be concluded within 26 weeks. A possible unintended consequence of this is that local authorities, save in dire cases, appear to be working with families for longer before care proceedings are issued. When proceedings are issued it is not uncommon in certain cases for it to be agreed at court that children should be made subject to Interim Care Orders with the plan being that the child remains at home. This is also a feature of some cases where the final outcome is that the child remains at home but the under auspices of a final care order. It is not uncommon for such arrangements to be agreed between the parties at the time.

Although this may be a pragmatic arrangement difficulty can occur when things go wrong and the Local Authority choose to seek to exercise their parental responsibility by removing the child from the care of his parents. In such situations the Local Authority would no doubt assert (and in most cases likely have valid reasons) that they believe that the “child’s safety requires immediate removal”. The parents may well feel that the proposed action of removal is a disproportionate response to whatever difficulty may have arisen.

When an interim care order is in force the correct procedure is that the Local Authority should inform the parents of the proposed change of plan and have the matter remitted back to court so that the court can determine whether removal should be authorised (or if the Local Authority have acted unilaterally then whether the removed child should immediately return back to the parents.

In situations where court proceedings have concluded such that the child remains at home but with the Local Authority having a final care order then the situation is different, in line with the case of Re W and B (Children) (Care Plan) [2002] H.R.L.R. 26 “a cardinal principle of the Children Act 1989 was that the courts were not empowered to intervene in the way local authorities discharged their parental responsibilities under final care orders”.

This situation was considered in the case of Re: DE [2014] EWFC 6 (Fam) that confirmed that the recent provisions of Re B-S should prevail such the Local Authority should identify the possible options and analyse the arguments for and against removal and should only consider removal if it is necessary to safeguard or promote the child’s welfare. Without this then any removal or threat of removal would be an interference with the Article 8 rights of the parents and the child. If the parents feel this is the case then the appropriate remedy would be to apply to discharge the care order and further to seek an injunction under s.8 of the Human Rights Act 1998. If such an application is made then directions should be made for the filing of evidence followed by a contested hearing.

In Re: DE Mr Justice Baker provided the following summarised guidance in cases such as these: (1) where a care order is made with the child remaining at home it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency, (2) the Local Authority must rigorously analyse all realistic options and involve the parents in the decision making process, (3) if the parents choose to seek to discharge the care order then consideration should also be given to also bringing an application under s.8 Human Rights Act, (4) if the Local Authority give notice that they intend to remove the child which is met with an application to discharge the care order then they must not remove the child unless his immediate removal requires it and must continue to consult with the parents; failure to do this is likely to be unlawful, (5) on an application to discharge the care order the court needs to determine whether this also gives rise to a likely application under the Human Rights Act, this is necessary as parents may not qualify for legal aid and so may be bringing the applications themselves, (6) upon hearing an application under s.8 Human Rights Act, pending the outcome of an application to discharge the care order, then the court should normally grant the injunction unless the child’s welfare requires his immediate removal.

In essence the removal, or proposed removal, of a child from the care of his parents whether at an interim stage or following the conclusion of proceedings must only be considered as the last possible resort. Save in genuine emergency the Local Authority should only remove the child once a robust analysis of all available options has taken place that conclude this is the only viable option and further there needs to be ongoing consultation with the parents with clear notice being given to afford them the chance to have the court scrutinise the proposed removal.

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