CARE PROCEEDINGS: Re S (Minors) [2010] EWCA Civ 421

28 APR 2010

(Court of Appeal; Wilson LJ and Baron J; 22 April 2010)

The father posed a grave danger towards his children. The parents were injuncted from communicating with one another. The mother had left a refuge to return home, although the father was not in home. The judge had indicated that unless the mother withdrew her aspiration to secure relaxation of the injunction, the children would be removed. The mother did withdraw her application but the local authority nonetheless amended the interim care plan to remove the children into short term foster care because of concerns that the mother was unable to exclude father.  

No advance notice of the application was given by the local authority to the mother. The change was endorsed by the same judge on the basis of the existing interim care orders. The local authority had complete discretion as to contact.

The mother appealed. Held, the circumstances in which children were removed from mother had been entirely unacceptable. No adequate notice of proposed removal was given to the mother. The grounds for change had not demonstrated that safety of the children demanded immediate separation in absence of any breach of the injunction. The judge had made misrepresentation to the mother in telling her that the children would be removed unless she did something, and then removing them even though she had done the required action. There was no proper balancing of pros and cons of leaving children in the mother's care. There was no consideration of ordering the mother to return to refuge. Foster care should not have been approved without contact arrangements and if a summary order had been needed, a further hearing should have been listed.

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