Council defends its record on care applications after severe judicial criticism

In Nottingham City Council v LW & Ors [2016] EWHC 11 (Fam) the local authority issued care proceedings on 28 January, 12 days after the baby (LW) was born, on the grounds that there were reasonable grounds to believe that she was or would be at risk of suffering significant harm if she were placed in the care of her mother and/or father.

The mother’s older child (B) had previously been the subject of care proceedings and placed with the maternal grandparents amid concerns over his parents’ drug taking and domestic violence.

Social workers then became aware that the mother was pregnant in October last year and that the expected date of delivery was some time in January.

A birth plan was prepared, but according to Mr Justice Keehan, it was “not worth the paper it is written on because, as it now transpires, it was ignored by everyone connected with the local authority”.

The birth took place on 16 January and two days later the hospital notified social workers. However, social workers took until 21 January to place the papers before the local authority’s solicitor for consideration of the issue of care proceedings.

Another seven days passed before a council solicitor issued care proceedings and applied for an ‘urgent’ interim care order.

Mr Justice Keehan concluded, on an interim basis, that he could not risk LW being placed in the sole and unsupported care of the mother and/or the fater.

This was “in light of the removal of B from the care of his mother, the allegation that the mother had abused methadone during her pregnancy, that she had failed to engage with any ante natal care and the fact that the father had taken a drugs overdose, days before LW's birth, which caused him to collapse and necessitated his admission to hospital,” he said.

The judge made an interim care order and approved the plan to place LW in foster care pending a contested hearing. He also directed that the council should facilitate supervised contact between LW and her parents each weekday before that hearing.

In relation to the handling of the case, Mr Justice Keehan said the local authority should have adopted good practice, and he set out a number of basic but fundamental steps that should have been taken.

He went on to say that Nottingham had been “inexcusably late” in making the application for an interim care order and that the parents had been done “a great dis-service”.

The judge said: “It may well be that the outcome would have been the same whatever the length of notice that they and their respective legal advisors had had of this application; that is not the point. It is all a question of perceived and procedural fairness.

“The actions of this local authority, in issuing an application for an interim care order so late in the day, have resulted in an initial hearing before the court which, I very much regret, is procedurally unfair to the parents. Of equal importance, it is unfair to the children's guardian who was only appointed on the morning of the issue of this application. The fault for this unfairness lies squarely at the door of this local authority.”

Mr Justice Keehan said he was in no doubt that if the application for an interim care order had been issued timeously by Nottingham then the hearing before him on 28 January 2016 could have been an effective contested hearing.

“In the premises I have no hesitation in concluding that the costs of this abortive hearing should be borne by the local authority. Accordingly I shall order the local authority to pay the costs of all of the respondents to be assessed if not agreed,” he found.

The judge continued: “This local authority is, I am told and accept, a 'serial offender' in issuing late and 'urgent' applications for care proceedings and/or interim care orders in respect of new born babies. Save in respect of clandestine pregnancies and/or births, I simply do not understand why this local authority issues proceedings so late and so urgently. In this case it was a most spectacular and contumelious failure.

“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.”

Mr Justice Keehan suggested that given that in the vast majority of cases a local authority would be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, he could not conceive how such a requirement placed 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.”

He concluded: “In this case the local authority wholly and unreasonably failed the child, her parents and the children's guardian.”

Responding to the judge's comments, Alison Michalska, Corporate Director for Children and Adults at Nottingham City Council, said: “We accept that care proceedings should have been issued earlier in this case of a new-born baby, who was 12 days old at the time of the Hearing, to prevent an urgent application when the baby was due to leave hospital. Guidance has been issued to all staff in line with that contained within Mr Justice Keehan’s judgment to avoid this happening again.
 
“While we accept the criticism and have apologised, we do not accept that we unnecessarily issue late care applications. A recent review of the number of care cases issued on an urgent basis has been undertaken, the outcome of which does not support this view and we have shared this information with the Family Division of the High Court in London. We have robust procedures in place to protect our children.”