CARE: Re W (Removal into care) [2005] EWCA Civ 642

04 MAY 2005

(Court of Appeal; Thorpe and Wall LJJ; 4 May 2005) [2005] 2 FLR 1022

The local authority planned to remove two twins and the parents consequently applied for the discharge of care orders in May 2004. After the twins were removed the local authority tried to free the children for adoption. The parents sought an injunction to enable their return under the Human Rights Act 1998, s 8. The judge held there had been no breach of s 8 as the Placement of Children with Parents etc Regulations 1991 (SI 1991/893), reg 11 (1) imposed a duty on the local authority to end the placement with the parents and that the response was legitimate and proportionate. The Court of Appeal dismissed the father's appeal, although the judge had erred in elevating reg 11(1) to the status of primary legislation, the judge did not decide the case on that basis. The explanations the judge gave for his conclusions were uniformly clear and sufficient. The removal of the twins was a legitimate and proportionate response. Per curiam: the parents have to challenge the removal of children under the Human Rights Act 1998 prior to their actual removal. It would be much more difficult for the parents to succeed if the children had already been removed and placed into a neutral environment.

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