A council’s “unacceptable” delay in applying for an urgent care order left parents without a fair hearing over a decision to take their baby into care.
Justice Keehan found Nottingham city council was “inexcusably late” in applying for an interim care order for child LW. A birth plan designed to protect the child as soon as she was born had also been ignored “by everyone connected with the local authority”, he added.
A series of delays, including a “flawed” decision to delay issuing care proceedings the day the baby was born, meant an urgent interim care order was filed 12 days after LW’s birth, at least a week later than it should have been, the judge said.
Social workers were notified of LW’s birth on 16 January. It took them five days to place the papers needed to consider care proceedings with the local authority’s legal. It then took another week for the local authority to issue care proceedings.
Two and a half hours
This meant the council’s application and social work evidence was not served on the parents’ solicitors until 12.30pm on 28 January, just two and a half hours before the case was in heard in court.
The baby’s mother and father opposed the care order and wanted the opportunity to challenge the social work evidence. But a contested hearing would have taken one day and a lack of judges available meant this would have delayed the process by days’ more.
This meant the judge granted the interim care order and approved a plan to place LW in foster care pending a contested hearing. He said the process put the child’s welfare first but “arguably” breached the parents’ rights to a fair trial under the European Convention on Human Rights.
He said the decision to place LW into care was to meet his best interests, but he added: “The hearing before me may have resulted in an order that best protected the child, but it could hardly be categorised as a fair hearing so far as the parents are concerned.”
The judge criticised the local authority for “wholly and unreasonably” failing the child and her family, and ordered it to pay the parents’ costs.
He said the council’s “fundamental and egregrious” errors had serious consequences and added that Nottingham was a “repeat offender” for issuing applications late.
The court heard how the Nottingham council social worker delayed making the application so they could add evidence to their case. The judge said this approach was endorsed by the council’s senior management and lawyer but was “flawed” because the pre-birth plan had already been deemed to hold sufficient evidence for an interim care order.
Other delays included a social worker not picking up an email containing a midwife’s report due to being off sick.
The fact the errors led to the care order being made 12 days after LW was born meant the birth plan to protect her was not “worth the paper it was written on”, the judge said.
Keehan said the failings were even more concerning because the nature of the case was “run of the mill” for local authorities. He set out guidance on what steps should have been taken:
- The birth plan should have been rigorously adhered to by all social work practitioners, managers and the legal department
- A risk assessment of the mother and father should have been completed immediately upon social workers being made aware of the mother’s pregnancy.
- This should have been completed at least four weeks before the mother’s expected date for delivery and updated to take account of relevant events immediately pre and post delivery
- It should have been disclosed, on completion, to the parents and, if instructed, to their solicitors to give them an opportunity to challenge the assessment or care plan
- All relevant documents needed for care proceedings should have been submitted no less than seven days before the expected date of delivery.
- The legal department should have issued the application on the day of birth, and no later than 24 hours later
- Immediately upon issue, if not before, the local authority’s solicitors should have served the applications and supporting documents on the parents and, if instructed, their solicitors
- Immediately upon issue, the local authority should have sought an initial hearing date from the court
As a result of the case, Nottingham’s children’s services director said that team secure emails would be checked on a frequent basis by the team’s business support officer or duty social worker. This would prevent documents from “sitting in the inbox” when social workers or case holders are absent, he said.
The judge said that a hospital’s willingness to keep a baby is not a reason to delay an application for an interim care order. He said a hospital cannot detain a baby against the wishes of the parents, and the capability of a maternity unit to accommodate a child may change within hours.
“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,” he said.
Nottingham city council has been contacted for comment.