A High Court judge has allowed parents with learning difficulties to appeal the taking of their son.
The mother has a mild learning disability and the father has a “significant cognitive impairment” and an IQ of around 50. Despite that, he has managed to function successfully in adult life.
Their son, called ‘D’ in the judgment, was born in late 2011 and the couple married the following year.
After D’s birth, the parents were monitored closely by the local authority and it was decided that he remain with them under a care order.
After initially being satisfied with the care the parents gave D, the local authority became concerned when a social worker argued that they were not giving him enough appropriate stimulation and were unable to predict potential dangers.
The local authority had a care order for D approved and sought to remove him from the family home.
The parents were informed by their lawyer that applying to end the local authority’s care order would not prevent the removal of D in the short term.
As a result, they applied to appeal the decision under Section 6 of the HRA.
Section 6 states that it is unlawful for a public authority to act in way that infringes upon rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
The specific right listed in the application is covered by Article 8 of the ECHR, which states:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
District Judge Goddard heard the appeal and dismissed it, ruling that he did not have the power to stop the local authority removing D from his parents’ care.
When the case reached the High Court in London, Mr Justice Baker ruled that the district judge had been “plainly wrong” in his decision.
“It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.”
As a result, the judge allowed the parents’ appeal.
Speaking more generally, Mr Justice Baker said that there had been a recent increase in the number of instances where a care order has been “concluded with a final care order on the basis of the child remaining at home”.
This increase has come since the latest set of family law reforms, which impose a 26 week deadline for cases to be finished.
The judge went on to add that, as a result, there would be an inevitable increase in cases where a local authority will want to subsequently remove the child.
He recommended a series of measures to help navigate such cases in the future.
The measures include:
- A fourteen day notice period given to parents that the local authority intends to remove a child. He said that was an appropriate amount of time to allow parents to obtain legal advice without causing undue delays.
- Local authorities should regard the permanent placement of a child outside of the family as “a last resort where nothing else will do”.
- Any parent seeking to oppose a care order which would remove their child should consider applying for an injunction under Section 8 of the HRA.
- Local authorities must have a written record that they have considered whether it is absolutely necessary for a child to be removed immediately. Failing that could be seen as a violation of Section 8.
- As legal aid is not available for applications against care orders, the person handling the application, the ‘allocation gatekeeper’, should check whether the circumstances of the case might give rise to an HRA injunction.
- Injunctions filed under the HRA should be granted unless “the child’s welfare requires his immediate removal from the family home”.
In an interesting analysis of the case’s implications, suesspiciousminds argues that while a fourteen day notice period except for emergencies may be implicit as things are now, they need to be made explicit in future cases.
The legal blog said that should these recommendations be adopted:
“For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.”
Mr Justice Baker said that the case highlighted a further problem with the current system.
“If this prospect had arisen in the context of care proceedings, [the parents] would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available [in cases like this].”
The only reason the parents had legal representation was because their lawyer had agreed to work pro bono, he noted.
The judge added:
“It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”
Although the parents in this case were not eligible for legal aid, there is a mechanism which people in similar situations could use in order to secure help for representation.
The current legislation says that legal aid is not available in civil cases except in ‘exceptional circumstances’, for example if the denial of aid would breach someone’s human rights.
This creates a loophole which people could exploit.
As I have discussed before, the loophole regards Article 6 of the ECHR, which governs the right to a fair trial.
A precedent has been established that, under Article 6, when someone’s lack of legal representation would deny them proper access to the court, it constitutes a breach of their human rights.
So while legal aid has been dramatically slashed recently, there is still a way for people to avoid going to court unrepresented. It is something that more people should take into account.
The parents in this case were fortunate to have lawyers who were willing to work for them for free, but had they been informed of this legal loophole it would not have been necessary. They could have secured some much needed legal aid and funded a team to represent them in their fight against the removal of their son.