Calls for review of newborn care cases as study highlights growing use of zero-notice hearings

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A “wholesale review” of care proceedings concerning babies should be considered because of the growing use of hearings that can see newborns removed from mothers with little or no notice, a study has warned.

The research, based on eight years of Cafcass data, found there had been a notable increase in the incidence of babies younger than two weeks being subject to care proceedings across much of England and Wales.

There was also a “significant growth” in the proportion of newborn babies whose families faced short-notice hearings, with several regions recording a sharp rise in the use of hearings on the same day proceedings were issued.

In the North East, in 2019-20, more than 40% of newborns in care proceedings were subject to hearings with zero days’ notice, researchers from the Nuffield Family Justice Observatory (NFJO) found.

Such practices not only risked failing to meet infants’ best interests but also compromised their parents’ human rights to a fair hearing, under Article 6 of the European Convention on Human Rights, the study report warned.

“If short-notice, emergency or same-day hearings are now the norm in newborn care cases… this suggests that wholesale review is needed of how care proceedings are conducted at birth,” it said.

‘Fair process is essential’

Cathy Ashley, the Family Rights Group’s chief executive, said the findings were very worrying.

“This new research shows there has been a significant rise in recent years in newborn babies being subject to care proceedings while their mothers are still in hospital, in some cases still bleeding from the birth,” she said. “The most common legal outcome for these babies will be adoption. Many of these mothers whose babies are subject to care proceedings are very young and too often have themselves been in care.

“If the state is to consider the draconian step of removing a child from its parents, then fair process is essential,” Ashley added.

It is shocking that same-day notices for care proceedings have become the norm in parts of England and Wales and [this] leads to serious questions as to whether the system can act justly in such cases.”

A spokesperson for the judiciary also welcomed the new research, commenting that it “provides a helpful statistical perspective on an area of great importance in the family courts”.

Regional disparities and lack of clear patterns

Nationally, both England and Wales showed marked increases in the incidence of newborn babies subject to section 31 care proceedings between 2012-13 and 2019-20. In England the rise was from 35 to 48 babies per 10,000 live births, while in Wales growth was even sharper, from 41 to 68 babies per 10,000 live births.

That picture was repeated in the figures around the proportion of hearings taking place on the same day that proceedings commenced, which in England doubled from 9% to 18%, and in Wales almost tripled from 6% to 17%, between 2012-13 and 2019-20.

In both countries, by 2019-20, around seven in 10 cases concerning newborn babies were coming to court within two days of proceedings being issued.

But there were wide variations across the English regions, with London the only area to record a drop, from 32 to 25 per 10,000 births, in the incidence of newborn babies being subject to care proceedings between 2012-13 and 2019-20. By contrast the North East saw a rise from 34 to 83 per 10,000, with rates in Yorkshire and the Humber and the North West also increasing significantly.

While all regions showed a general rise in the prevalence of short-notice hearings, again the picture in the North East was most concerning, with the proportion of same-day hearings doubling to 41% by 2019-20. Yorkshire and the Humber recorded a similar, though less steep trend, with 27% of cases being heard on a zero-notice basis by 2019-20.

“Across all regions, there does not appear to be any straightforward pattern between high rates of newborn cases and the proportion of cases that record a same-day hearing,” the report said. But it noted the extreme strain faced by the North East region, in terms of poverty and associated pressure faced by families, as well as observing that London was particularly well-served in terms of preventative resources that can avert care proceedings.

The NFJO report remarked that follow-up research would be beneficial in order to better understand the regional disparities evident in the data.

‘Inexcusable’ postcode lottery

“We know from both research and our advice line [the] factors that can make a significant difference as to whether care proceedings are issued,” said Ashley.

“[These include] whether effective work is undertaken with expectant parents during pregnancy; the availability of mother and baby placements; the provision of services such as domestic abuse or mental health specialist provision; the severity of hospital maternity unit discharge policies; and whether the local authority has fully explored whether there are wider family who might be able to step in to support the parents and help care for the child, averting the need for care proceedings.”

She said it was “inexcusable” that families’ chances of having a baby removed varied so significantly based on location.

But the judiciary’s spokesperson cautioned that further investigation of the issues and context highlighted by the NFJO – which they committed to pursuing – would be necessary in order to achieve a “proper” understanding.

“The fact that hearings take place within a short time of a child’s birth tells us nothing of what occurs at those hearings; it should not be assumed that urgent court hearings and legal orders necessarily mean separation of mother and child,” the spokesperson said.

“Often it means just the opposite. The courts can and do provide an important legal framework to support families at the most challenging of times.

“Judges are mindful at all times of the best interests of the child,” the spokesperson said. “A decision to separate mother and child is taken only after examining the available evidence and considering all other options.”

Impact of poverty

In a blog post for the Association of Directors of Children’s Services, the chair of its North East region, John Pearce, said that the figures reflected “the real and devastating impact that poverty has on the lived reality of many families”.

He said this, combined with family circumstances including domestic abuse, poor mental health and the impact of trauma,  substantial cuts to local authorities and an under pressure health system, left many families “ill-equipped to provide the safe nurturing environment for their children that they crave and their children need”.

He added: “There are undoubtedly issues of system, culture and practice we need to develop in the North East and this requires commitment from all services across the system and collaboration with communities.”

New guidance on the way

The report comes with guidance being developed for social workers and other professionals on managing care proceeedings for newborn babies, off the back of a 2019 evidence and case law review by the NJFO.

The issue was also raised in the report this year of the public law working group, commissioned by the President of the Family Division to investigate the steep rise in care proceedings in recent years, and suggest solutions to manage its impact.

The report emphasised the fundamental importance of good pre-birth planning by local authorities, and said consideration should be given to how this could be improved, including by involving Cafcass in the process.

It also suggested that the requirement for applications to be lodged after birth should be looked at.

“The incidence and impact of applications seeking removal of newborns is such that this issue merits further discussion, the report said. “It is recognised that these are fundamental, difficult and potentially contentious areas, but that should not prevent the debate.”

In its response to the NJFO report, Cafcass said the solutions to the “concerning” problems highlighted by the study lay in the public law working group’s proposed reforms.

A spokesperson added: “Cafcass is playing an active role in delivering those reforms and is helping to lead new debates and practice discussions about the rationales for decisions to issue proceedings, and how we can best balance the use of state intervention in family life against our responsibilities to support families to stay together where it is safe and in children’s best interests for this to happen.”