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When Can They Take Your Child Away Before a Court Hearing?
Taking your child away from you is a parent’s nightmare. Unfortunately a child might not have both parents, and so when there is only one parent that must take care of the child or the other feels it is unsafe for the child to remain in the other’s custody, that’s where family solicitors face their hardest battles.
How Can Your Children Be Taken From You?
If you agree to have your child removed from your care, your child will be accommodated under Section 20 of the Children Act 1989. The same Regulation state that the child’s accommodations should (where possible) be based on a written agreement between the local authority and a person with parental responsibility. The accommodation can be with a foster parent, who may or may not be a friend or relative of the child, or a children’s home, or a community home.
But if you do not agree, there exist only two ways your child can be taken away without your consent.
- The police may remove the child using their emergency powers under Section 46 of the Act, considered as being under police protection for a maximum of 72 hours only
- By an order of the court either as an Interim Care Order (Section 38) Emergency Protection Order (Section 44) of the Act.
The Uncertain Level of Authority in Child Protection
Child protection exists on a pendulum. It used to be that it was considered the parent’s right and responsibility to protect their children, outsiders should not butt in. Then during the 1970s cases like Maria Colwell who was beaten to death by her step-father in Brighton showed that children were uniquely vulnerable, and social workers did not have an awareness or understanding of child abuse that we now take for granted. It led the then Secretary of State to say that “the blood tie is not absolute.”
But after more publicized cases of children being murdered by their parents, the pendulum then swung too far in favor of social workers taking children from their parents. In 1987, one hundred twenty-one children were removed from their homes over a four-month period in Cleveland after two doctors diagnosed sexual abuse in the family. A subsequent inquiry revealed inappropriateness in the diagnosis and the actions of the social workers.
Then there’s the case of Victoria Climbie, who died at only 8 years old after a year of abuse and being fed scraps like a dog. Signs of her abuse had been visible for at least eight months prior, and she had been examined by two paediatricians and her case had been referred to a child protection officer and social workers in three different boroughs. Unfortunately due to a failure in communications and mistakes by social workers, no one took any effective action to protect her. Two social workers were sacked after disciplinary proceedings.
On one side we have distress and false accusations on parents; and other side, delays and misinformation could cause the deaths and emotional trauma of children.
The discretionary powers of local authorities were sharply restricted, and social care workers are now supposed to behave holistically – consulting parents, teachers, police and probation officers, and others involved in the child before making any decisions affecting the child’s future.
When the Children’s Act of 1989 was enacted, Lord Mackay remarked that “it should not be lawful for children to be removed from their families simply because the court thought the state would do a better job of bringing them up as parents. If that were the case, the threat to poor families and to minority groups, whose views of what is good for a child might not coincide closely with those of the majority, would be all too apparent.”
The Threshold Criteria
If you feel you are in danger of having your children be removed from your care, your family solicitor might point out to you how the ‘threshold criteria’ must be met before a court order could be granted.
This is based on Section 31 of Child Care Act 1989:
31 Care and Supervision
(1) On the application of any local authority or authorised person, the court may make an order—
- (a) placing the child with respect to whom the application is made in the care of a designated local authority; or
- (b) putting him under the supervision of a designated local authority
(2) A court may only make a care order or supervision order if it is satisfied—
- that the child concerned is suffering, or is likely to suffer, significant harm; and
- that the harm, or likelihood of harm, is attributable to—
- the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
- the child’s being beyond parental control.
Therefore, if what happened has
- already cause significant harm to the child, and/or
- there is the serious risk that significant harm will be suffered in the future
- or the child is beyond parental control (i.e., parents are either departed, invalid, or otherwise unable to care for the child such as being prison or mentally unsound)
As long as the child is not suffering or at risk of a significant harm, the court CANNOT give an order for care or supervision that justifies removing the child from their family.
Meeting the Threshold, not the Happiness of the Child
There was an appeal in the Supreme Court in 2013 about a matter of the risk of future psychological or emotional harm. This was regarding a child removed from her parents under an interim care order, in which there was said to be a serious risk that under her parent’s care she would be presented for and receive unnecessary medical treatment, or grow up confused and copy her mother’s behavior. Her mother had a history of dishonesty and false allegations, and was diagnosed with a psychiatric condition – a factitious disorder, which involves the deliberate exaggeration or fabrication of symptoms and the feigning of a false medical history in order to continually obtain the patient’s role.
In the ruling, Baroness Hale of Richmond commented:
“I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:
- “The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.
- “When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
- “Significant harm is harm which is “considerable, noteworthy or important”.
It’s vital to understand from an early stage what the local authority has determined as their threshold criteria, if the parents agree, or if there needs to be a hearing to examine the local authority’s evidence. A parent cannot simply rest on their laurels here but must have a clear understanding of those criteria. A judge may decide that harm suffered by children in a previous relationship is sufficient to be relied upon to meet the threshold criteria, but sometimes local authorities also drastically over-reach and overplay their judgement of a family’s situation.
Fearing the Removal of the Child
It’s not only the emotional harm, distress, and future psychological issues of being separated from their parents that should concern parents and local authorities. Children placed in homes are themselves under physical risk of abuse or exploitation.
Children and teenagers, due to a lack of nearby residential care homes, are increasingly being sent out to more distant homes. Out-of-borough placements has accounted for 77% of all placements since 2012. Being so far away from their friends family, these children are more vulnerable to sexual predators and being targeted by drug gangs. Without support from familiar faces, they are harder to rehabilitate, experience greater emotional distress, and miss out on valuable education.
An all-party inquiry parliamentary group launched an inquiry and noted that the root of the problem was how operators established children’s homes in clusters that makes them easier to manage and more profitable. Some homes charge up to £5000 a week per child. A lack of homes run by local authorities force them to place children wherever there may be vacancies.
Labor MP Ann Coffrey remarked “The private sector marketplace in social care is catastrophically failing children. The system is working in the interests of the providers but not for the children themselves.”
Contesting an ICO or EPO
A care order is supposed to meet a very high standard and should not be ordered unless a child’s safety demands immediate separation.
Here are some other questions that could help you and your family solicitor express if the threshold has been crossed.
- Does the child’s safety (in the broad sense, including their psychological and emotional welfare) demand an immediate separation from what is causing them harm?
- Can you justify an interference with this child’s right to family life?
- Can you justify removal before a guardian has been appointed, and given sufficient time to examine the case independently?
- Have the parents been allowed to be involved in the decision-making with the local authority, or have they been afforded the opportunity to make their case before any decision is made?
- Is there sufficient evidence in support of the order? Is it verifiable, comprehensive, and compelling?
- Have the parents been given copies of the case conference and other documents that a parent is expected to have already seen once the case goes to court?
- Has there been any effort or proposals for contact between the child or their parents?
- Can the removal be postponed to allow for a fair assessment without undue risk to the child or intervention?
- Is the alternative arrangement proposed to the child instead of being in the care of their family, fair and in the interests of the child? Does the foster family or proposed carer have the necessary skills and opportunities to meet their particular ethnic or cultural needs?
- Does the child have any condition which would worsen with an unplanned relocation (such as autism or physical disability)?
The court usually cannot look too deep into the case due to the urgency and limited time of an interim hearing. These hearings usually are arranged hurriedly and you’d be lucky to get a day of the court’s time. If you want to protect the child, make sure arrange all arguments and evidence to be presented all ready as soon as you can with a good family solicitor.
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