Local authority withdraws care proceedings for child with complex medical needs removed from her parents by "wholly inappropriate" use of section 20 of the Children Act 1989 (High Court)

Practical Law UK Legal Update Case Report 7-546-8206 (Approx. 6 pages)

Local authority withdraws care proceedings for child with complex medical needs removed from her parents by "wholly inappropriate" use of section 20 of the Children Act 1989 (High Court)

by Alison Williams, Harcourt Chambers

Background

Section 20 agreements

A local authority may provide accommodation for any child within its area if it considers that to do so would safeguard or promote the child's welfare (section 20(4), Children Act 1989 (CA 1989)). In these circumstances, any holders of parental responsibility for the child who are able to provide accommodation for the child, either with themselves or with another person, must consent to their child being accommodated by the local authority (sections 20(7)-(8), CA 1989).

Emergency removal of children

If the local authority wishes to urgently accommodate a child due to child protection concerns and there is no section 20 agreement from the parents, the emergency remedies are a police protection order (section 46, CA 1989), an emergency protection order (EPO) (section 44, CA 1989) or an interim care order (section 38, CA 1989).

For further information, see Practice notes, Police protection, Emergency protection of children: overview and Interim care and supervision orders.

Local authority procedures and decision-making

Where there are child protection concerns, the procedures to be followed by local authorities in gathering evidence, analysing that evidence, liaising with other professionals and decision-making (including how strategy meetings should be conducted) are set out in the guidance Working Together to Safeguard Children 2013.

This guidance states that the police should be involved in strategy meetings if appropriate and emphasises that police powers of protection should only be used in exceptional circumstances where there are immediate concerns relating to the safety of a child and there is insufficient time to seek an EPO.

Protocol for cases involving suspected fabricated and induced illness

The 2008 protocol from the Department for children, schools and families, Safeguarding Children in Whom Illness is Fabricated or Induced, sets out detailed guidance about how such cases should be investigated and managed. Chapters 3 and 4 are of particular relevance when considering the good practice of health professionals, paediatricians and local authorities. Some areas have their own local protocols.

Leave to withdraw care proceedings

When a local authority issues care proceedings but then seeks to withdraw its application, the court needs to grant the local authority permission to do so (Family Procedure Rule 29.4). In circumstances where the local authority cannot prove that the threshold criteria are met on the balance of probabilities, the court has no alternative but to grant permission.

Facts

The child, E, who was 23 months old at the time of judgment, had a number of serious medical difficulties. She relied on a ventilator and cuffed tracheostomy for her breathing and a gastrostomy for her feeding. E was discharged home into her parents' care after spending the first 11 months of her life in hospital. Her parents received specialist training to manage E's care needs and were supported by a complex care package arranged through Virgin Care. The local authority was initially involved on a child in need basis.

A safeguarding referral was made from Virgin Care to the local authority on 15 February 2013 following incidents of E's medical tubes being found broken. The local authority convened a strategy meeting on 28 February 2013, which was attended by some of the professionals involved in E's care. Concerns were expressed that the parents had deliberately broken the tubes as a form of attention-seeking behaviour. The parents were portrayed as manipulators, fabricators, demanding, unreasonable and difficult and it was said that their behaviour was compromising E's care and safety. It was clear that a purpose of the strategy meeting was consideration of whether this could be a case of fabricated and induced illness. A decision was reached that E should be removed from her parents' care.

E was removed from her parents' care later that evening. The removal was by way of what Theis J described in her judgment as "an enforced section 20 agreement", in the presence of two social workers and four police officers (three of whom were uniformed). The local authority issued care proceedings.

The local authority sought permission to withdraw care proceedings on the ninth day of the fact finding hearing after the court had heard evidence from 22 professionals.

Decision

The local authority's application for permission to withdraw proceedings was granted.

Allegations against the parents

The allegations about the parents' behaviour lacked any real evidential foundation and Theis J found there was no evidence that either of the parents deliberately broke E's tubes. Findings on what caused the damage to the tubes could not be made without a large degree of speculation.

Local authority's responsibility in its evidence gathering

Local authorities must carefully check the sources of information and assess the reliability of that information when using it to form the foundation of decisions about child protection. The following guidance was given:

If time allows, information to be given by key participants in a meeting where important decisions will be made (such as a strategy meeting) should be reduced to writing and circulated in advance. This particularly applies where there is a gap between the request for a meeting and the meeting taking place and where the circumstances are complex.
It is essential that statements for court proceedings are based on contemporaneous records and not recollections made some months later.
There is an obligation on public authorities who are seeking orders interfering with rights to family life under Article 8 of the European Convention on Human Rights, to present a balanced picture of the evidence, not just the negative information. In this case, both the local authority and Virgin Care failed to check the evidential foundation of what was being asserted and ensure that it was presented in a balanced way.

Fabricated and induced illness

The allegations against the parents amounted to a form of fabricated or induced illness. While this did not form a positive part of the local authority's case presented at the fact finding hearing, the local authority allowed the issue to remain unresolved without it being properly investigated and did not clarify that it was not regarded as a relevant consideration.

The 2008 protocol Safeguarding Children in Whom Illness is Fabricated or Induced was not followed. If any of the professionals in this case had followed that guidance and read E's medical records, then the local authority may have realised before the fact finding hearing that a number of the matters relied on against the parents were not made out.

Use of section 20 of the Children Act 1989 and the emergency removal

The decision to remove E from her parents' care on the evening following the strategy meeting by way of an enforced section 20 agreement was not justified. It had been achieved through an unfair process which the parents were powerless to challenge for over five weeks until care proceedings were issued. The local authority should have applied for an EPO or interim care order, which would have required the local authority to set out its evidence in statement form and give the parents an opportunity to challenge its case.

To use the section 20 procedure in circumstances where there was the overt threat of a police protection order, re-enforced by the presence of uniformed police officers, was wholly inappropriate and sought to circumvent the test the court would have required the local authority to meet if it had sought an EPO or interim care order.

Guidance on the use of section 20 of the CA 1989

The need to follow Hedley J's guidance in Re CA (A Baby) [2012] EWHC 2190 (Fam) on the use of section 20 agreements was emphasised and the following principles re-stated:

Section 20 should not be used unless the local authority is working in partnership with the parents and there is informed consent to section 20 accommodation. In this case it was not clear whether the parents had understood the implications of their section 20 agreement.
Police powers of protection should only be used in exceptional circumstances where there is insufficient time to seek an EPO where the immediate safety of a child is a concern.

Local authority management

In this case there was a lack of effective structure and leadership within the local authority regarding decisions made before and after E's removal from her parents' care.

The safeguarding responsibility is with the local authority and includes a responsibility to properly lead decision-making. There was little evidence of effective and consistent management or supervision of the social workers who were operating on the ground.

Comment

This case reminds practitioners of the importance of primary evidence and the responsibilities of local authorities to properly scrutinise and analyse their sources of information when making significant decisions about child protection. It also reminds local authorities to present evidence to the court in a balanced manner. The complexities of E's medical needs in this matter made this all the more essential.

The case also emphasises why it is vital that professionals making decisions affecting the protection of children properly follow any relevant government issued guidance or protocols. The label of "fabricated or induced illness" does not have to be formally applied to the case by the local authority for the court to find that this is an issue and the relevant guidance should have been followed. Practitioners in these cases should consider whether the allegations against the parents amount to a form of fabricated and induced illness, having regard to definitions in the 2008 protocol, and then ensure that relevant guidance has been followed so that the case can be properly resolved.

This decision adds to a growing number of recent cases where the local authority has been found to use section 20 of the CA 1989 in an inappropriate or unlawful manner to effect the immediate removal of a child, rather than make an application to court for an emergency remedy. Section 20 agreements are only appropriate in cases where the parent is genuinely working in partnership with the local authority and has given properly informed consent. The misuse of a section 20 agreement is likely to give the parents grounds to bring a claim for relief under the Human Rights Act 1998.

Finally, as Theis J commented, this case illustrates "the vital importance of advocates who are experienced in undertaking this work and the value of the forensic process. Without that expertise and this process the outcome in this case could have been very different, which would have been detrimental to E's welfare" (paragraph 7).

Case

Re E (A Child) [2013] EWHC 2400 (Fam), 30 July 2013.

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Local authority withdraws care proceedings for child with complex medical needs removed from her parents by "wholly inappropriate" use of section 20 of the Children Act 1989 (High Court) | Practical Law