Removal of new-born babies in care proceedings: Nottingham City Council v LW & others

How long can a Local Authority wait before issuing care proceedings for removal of a new-born baby? No more than 5 days, according to Keehan J in Nottingham City Council v LW & others [2016] All ER (D) 59 (Mar); [2016] EWHC 11 (Fam). On 28 January 2016 at 3pm the judge heard an urgent ICO application in an unusual listing situation whereby no justices, district judge or circuit judge were available to hear the matter at short notice.

The relevant chronology was as follows:

• 16 January: the baby was born.
• 18 January: hospital staff notified social workers of the birth.
• 21 January: social workers placed papers before the Local Authority’s solicitors for consideration of issuing proceedings.
• 28 January: proceedings issued and then served on the respondents at 12.30pm for a hearing at 3pm.

The judge ultimately granted the ICO but was excoriating in his criticism of the Local Authority, which had previously been involved with the family in relation to another sibling, knew that the mother was pregnant by October 2015, knew that her due date was some time in January and had prepared a pre-birth plan.

The Court provided the following useful guidance for local authorities in similar cases:

30. “Before I do so, I wish to make certain observations on the flawed approach apparently endorsed by both the senior children’s services manager and the local authority’s senior lawyer in this case. First, both made reference to the willingness of the hospital to keep the baby as an in patient pending the issue of care proceedings. Plainly the period of time for which a hospital is prepared to keep a new born baby as an in-patient, either on medical or welfare grounds, maybe a material consideration for a local authority on the timing of the making of an application for an interim care order, but must not place too great a reliance on these indications or assurances. The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order. The following should always be borne in mind:

1. a hospital may not detain a baby in hospital against the wishes of the mother or a father with parental responsibility;
2. the capability of a maternity unit or a hospital to accommodate a healthy new born child may change within hours, whatever the good intentions of the unit or hospital, depending upon the challenging demands it may be presented with;
3. the ability to invite the police to exercise a Police Protection Order, pursuant to s 48 of the 1989 Act or for a local authority to apply for an Emergency Protection Order, pursuant to s.36 of the 1989, are, of course, available as emergency remedies,
4. but such procedures do not afford the parents nor, most importantly, the child, with the degree of participation, representation and protection as an on notice interim care order application;
5. the indication of a maternity unit as to the date of discharge of a new born baby should never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child.

31. Second, where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither “usual” nor “ideal” practice for an application for an interim care order to be made on the day of the child’s birth, rather it is essential and best practice for this to occur.

32. Third, once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently.

33. The local authority should have adopted good practice and the following basic, but fundamental, steps should have been taken:

1. The birth plan should have been rigorously adhered to by all social work practitioners and managers and by the local authority’s legal department.
2. A risk assessment of the mother and the father should have been commenced immediately upon the social workers being made aware of the mother’s pregnancy. The assessment should have been completed at least 4 weeks before the mother’s expected date for delivery. The assessment should then have been updated to take account of relevant events immediately pre and post delivery which could potentially affect the initial conclusions on risk and care planning for the unborn child.
3. The assessment should have been disclosed, forthwith upon initial completion, to the parents and, if instructed, to their solicitors to give them an opportunity, if necessary, to challenge the assessment of risk and the proposed care plan.
4. The social work team should have provided all relevant documentation, necessary for the legal department to issue care proceedings and the application for an interim care order, no less than 7 days before the expected date of delivery. The legal department must issue the application on the day of birth and, in any event, no later than 24 hours after birth (or as the case may be, the date on which the local authority is notified of the birth).
5. Immediately upon issue, if not before, the local authority’s solicitors should have served the applications and supporting documents on the parents and, if instructed, upon their respective solicitors.
6. Immediately upon issue, the local authority should have sought from the court an initial hearing date, on the best time estimate that its solicitors could have provided.

41. The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.

42. Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority’s failure to act fairly and/or timeously will be condemned in an order for costs.”

(Matters highlighted in bold above are the author’s emphases alone and not the judge’s)

Local authorities be warned: failure to comply with the above guidance is likely to result in costs sanctions as well as stringent criticism.