The test for removal of a child who is already under a Care Order: Reason and Evidence

The circumstances in which a Local Authority seeks the removal of a child who is already under a Care Order will arguably be more difficult than the circumstances that gave rise to the Care Order itself. Nick McCall explores the test.

For those involved, from parents to professionals, to their legal representatives and the Judges who may ultimately determine that such a removal is necessary, there will be an inevitable sense of regret that the original plan and placement did not succeed.

The child concerned, may have already previously been removed on an interim basis, returned to their home under the Care Order and may, regardless of the perceived circumstance of the breakdown of their placement within their home, finally be feeling a sense of security and belonging in their home. A further removal away from the home, should of course then, be treated with the utmost seriousness.

Although the Local Authority will have already obtained a Care Order and therefore share parental responsibility, and is not therefore required to make an application to seek the removal of the child, such an attempt at removal will often lead to a parent applying to the court for injunctive relief preventing the removal of the child or/and an application to discharge the Care Order. Local Authorities will on such occasions have their decisions, plans and actions, scrutinised by the courts.

The authorities (below) contain the processes and approaches which should be adopted when seeking to remove a child who is under a Care Order and may therefore be of use to Local Authorities and for those acting for parents who seek to discharge a Care Order in such circumstances.

In situations where the Local Authority is considering the immediate removal of a child (who is already under a care order), Baker J in the case of Re DE (A Child) [2014] EWFC 6 set out that the test which should be followed is the same test as that of Re L-A (Children) [2009] EWCA Civ 822, for removing a child under an interim care order (pending a decision under S31 of the 1989 Act). That test being that;

The child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately.

Re DE also confirmed that this same test should be adopted, where a parent has applied to the court for the discharge of the care order- when such a decision is pending, but where immediate removal is deemed necessary. The removal of a child from its home, where such a removal was not in fact required, will, Baker J said, inevitably be a breach of the child’s (and family members) Article 8 rights.

Whether or not the immediate removal of the child is deemed appropriate, where the Local Authority is seeking to remove the child from her home on a permanent basis, Re DE reminds Local Authorities of their obligations in law; that such a proposal is that of last resort, where nothing else will do. In arriving at this conclusion, the Local Authority must have explored all feasible options, rigorously analysed them, and then explicitly weighed up the arguments for and against each option. Such a process should be considered, detailed and coherent and be able to be ready to be used in evidence in the courts.

These same points are contained in the judicial guidance of Baker J in Re DE and it should be noted that the 14-day notice period (save for immediate removal as above) and the parent’s engagement with the process are key components of the guidance:

49. To avoid the problems that have arisen in this case, the following measures should be taken in 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 not 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 receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) 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.

Local Authorities, when taking a decision to remove a child from her home where a care order is already in place, may feel that their decisions are more exposed than the decisions and actions they take in pursuit of their applications for care orders.

In the latter situations, Local Authorities can make the application to remove a child, and where they are deficient in their rationale or evidence, the Courts will simply direct a remedy for such deficiencies or otherwise will not grant the order which is being sought.

The difficulty faced by a Local Authority which has already obtained a Care Order, based upon a care plan placing the child with a parent, is that any change of placement thereafter, is in the hands of the Local Authority alone, unless injunctive relief is sought by the parent, or/and a discharge application of the Care Order is made (by the parent).

Local Authorities must therefore insulate themselves prior to taking any decisions to act, by ensuring that they comply fully with the guidance of Re DE.

Nick McCall joined Central Chambers from a Local Authority background. He is undertaking a pupillage under Joseph Lynch and is focussing on Family Law at present.

When Nick begins his second-six stage of pupillage, he will be accepting instructions in family law.

If you would like to instruct Nick in relation to family law matters, please contact the clerks by email, the website contact form or by telephone on 0161 2361133 to check when he will be available.