A Father v SBC & Ors

Factual and Procedural Background

This appeal concerns an application by parents for an injunction under the Human Rights Act 1998 to prevent a local authority from removing their child, who is living at home under a care order. The child, born in December 2011, has lived with the parents since birth under a care order made in November 2012 following care proceedings initiated shortly after the child's birth. Both parents have cognitive impairments, with the father lacking capacity to conduct litigation and requiring representation by a litigation friend. Despite professional support and a care plan endorsing the child's residence at home, concerns arose over the child's slow developmental progress and safety, leading the local authority to decide to remove the child and place him with foster carers. The parents opposed removal and applied for discharge of the care order, supported by legal representation provided pro bono. The local authority sought a recovery order and proposed removal on 25th April. At a hearing before a district judge, the parents applied orally for an injunction under s.8 of the Human Rights Act to prevent removal pending the discharge application. The district judge refused the injunction and granted the recovery order. The child was removed with parental cooperation, after which the parents filed a notice of appeal.

Legal Issues Presented

1. Whether the court has the power to grant an injunction under s.8 of the Human Rights Act 1998 to restrain a local authority from removing a child living at home under a care order pending determination of an application to discharge that care order.
2. Whether the local authority's removal of the child was lawful and compatible with the rights under Article 8 of the European Convention on Human Rights.
3. The appropriate test for determining whether a child should be removed from home under a care order pending the outcome of discharge proceedings.
4. The relevance of the prospects of success of a discharge application when considering an injunction application under the Human Rights Act.

Arguments of the Parties

Appellant's Arguments

• The district judge erred in law by concluding he did not have the power to grant an injunction under the Human Rights Act to prevent the child's removal.
• The judge misdirected himself regarding the application of s.8 of the Human Rights Act in the context of a care order under s.31 of the Children Act 1989.
• The judge wrongly concluded removal was a breach of Article 8 rights but failed to properly consider whether injunctive relief could prevent such a breach.
• The judge improperly considered the likelihood of success of the discharge application as part of the injunction assessment, which was irrelevant to the necessity of the injunction to protect Article 8 rights.

Respondent's Arguments

• The local authority contended that removal was lawful by virtue of the care order and that human rights had been considered at the time the order was made.
• The local authority argued that an injunction should not be granted because the removal was not unlawful.
• The local authority maintained that the judge should consider the prospects of success on the discharge application when assessing the injunction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework under the Children Act 1989, emphasizing the local authority's duty to safeguard and promote the welfare of children and the limits on their powers to remove a child placed at home under a care order. The court highlighted that removal is lawful only if necessary to safeguard or promote the child's welfare, and any other removal constitutes an unlawful interference with Article 8 rights. The court reviewed the procedural safeguards mandated by Article 8, requiring proper parental involvement and fair decision-making processes.

The court found that the district judge erred in concluding he lacked power to grant an injunction under s.8 of the Human Rights Act. The judge also wrongly considered the likelihood of success of the discharge application as relevant to the injunction decision, when the correct test is whether the injunction is necessary to protect Article 8 rights pending full hearing. The court noted the absence of emergency circumstances and the local authority’s refusal to provide "breathing space" before removal, which the district judge regretted but felt powerless to order.

The court concluded that the removal prior to a contested hearing was unlawful and that the district judge’s refusal of the injunction was incorrect. The court determined that a contested hearing with full evidence and parental involvement is necessary to determine whether immediate removal is justified by the child's welfare. The court also addressed the practical difficulties faced by parents with cognitive impairments and the lack of automatic legal aid in such circumstances.

Holding and Implications

The court granted permission to appeal and ALLOWED THE APPEAL, holding that the district judge was wrong to refuse the injunction application under s.8 of the Human Rights Act 1998.

The court remitted the case for a contested hearing before the Designated Family Judge to determine whether the child’s welfare requires immediate removal pending the discharge application, with directions for further evidence to be filed. The court declined to order the child’s return to the parents pending the hearing, given the elapsed time and potential distress.

The decision clarifies that local authorities cannot remove a child living at home under a care order without demonstrating necessity for the child's welfare, and that courts have jurisdiction to grant injunctions to prevent unlawful removal. The ruling emphasizes procedural fairness, parental involvement, and the necessity test under Article 8. It also highlights systemic issues regarding legal aid and representation for parents with learning difficulties in such cases.

No new precedent was established beyond confirming existing principles, but the court provided detailed guidance for local authorities and courts to avoid similar issues in future cases, including requirements for notice periods, rigorous option analysis, parental consultation, and early case management of injunction applications.