Members of DCC appear in the Court of Appeal on an urgent application to appeal a decision to separate a mother and child

Members of DCC appear in the Court of Appeal on an urgent application to appeal a decision to separate a mother and child. Julia Cheetham QC leads Liam Kelly for the successful appellant Mother. Susan Grocott QC appears for the local authority. Peter Rothery leads Sonny Flood for the child.

The appeal was launched on an urgent basis by the appellant mother, following the decision of HHJ Burrows to grant the local authority permission for the immediate separation of the mother (‘V’) and her child (‘O’), on 19 May 2021. Following an urgent application for a stay by Liam Kelly in the Court of Appeal that evening, an application for permission to appeal was filed on 20 May 2021. The matter was listed for a permission and appeal hearing on 21 May 2021.

Julia Cheetham QC and Liam Kelly for the appellant mother argued the decision was unfair. The mother had not had the opportunity to put her case to the Court, and owing to her learning difficulties and the way in which the local authority's permission for removal crystallised late in the hearing, the decision could not be fair.

Susan Grocott QC, leading Alex Walker, pointed to the difficulties the local authority had in making arrangements to support the mother and child, and considered the judge had good reasons for the making of his Order. If mother and child were separated, the local authority would try to reunite the mother and child in the future.

Peter Rothery and Sonny Flood for the child advanced that the position in which the judge found himself was not good, but in the circumstances, was as fair as it could be. The Children’s Guardian’s view was that the mother’s handling of the child was not safe, and that there was in effect, substitute parenting by the child’s carers.

The Court of Appeal determined the hearing was not fair, granted permission to appeal and granted the appeal against the judges decision to separate mother and child. Peter Jackson LJ, giving the leading judgment, stated:

8. The Judge was in a very difficult position, because the planning for O's arrival had not been as good as it should have been. The case was heard again and again because of the practical problems. This, I think, led to important planning being neglected because there were so many practical problems and court hearings. Still, if the Judge had made his decision after a fair hearing there would be no chance of an appeal succeeding.

9. However, I think that the Judge should have thought more about whether the hearing really was fair to V and, if it wasn't, whether O's situation was really so bad that he needed to be taken away immediately even though the hearing had not been fair.

10. I don't think that the hearing was fair to V. It wasn't set up to decide about O's removal – that was only put on the table by the Guardian the night before. No-one wrote down the arguments for and against taking O away or gave V the chance to put her side of the story. The local authority changed its mind at the very end of the hearing and it isn't clear who took that decision or why. All of that would be difficult for any parent to face, and V is not just any parent. She is someone with learning difficulties and it is only last week that her baby was born.

11. Of course there can situations where the risk to a baby is so bad that the baby has to be removed on the spot and even, in extreme cases, without the mother even knowing that the order is being made. So in the end the question for us is whether the risk was so bad for O that V could not even be given a couple of days in which to prepare her case. The decision was taken after the Judge heard about V, but he never heard from V.

12. I do not think that the situation on Wednesday afternoon was so bad that the Judge needed to take a decision there and then. As I say, I agree that there were risks that could lead a court to make that decision after a fair hearing. I also agree that the arrangements, with so many other people trying to help V look after O cannot continue much longer – they are only a holding position. However, once a baby has been removed from his mother in this sort of situation, it can be very hard to put them back together. So I think that V ought to have been given a chance to put her side of the story, even if that meant making the decision as little as a day or two later. In a nutshell, the risks for O weren't so bad that V should not have been allowed a normal hearing. None of this is a criticism of anybody, including the Judge, but I think that in making his decision he did not give enough thought to whether what was happening was fair all round.

13. What we will do is to grant permission to appeal and allow the appeal against the separation of O from his mother. The local authority has said that in that case its plan will be to try to continue the high level of support with different carers and different accommodation. It will still have its interim care order and it can of course remove O from V in an emergency. The arrangements that the Judge made for another hearing next Wednesday will remain. The lawyers will agree to draw up short simple documents on Monday so that V knows the case that she has to answer at the hearing. It will be up to the judge at that hearing whether the court needs to hear live evidence. If so, that will have to be carefully chosen because it is only a four hour hearing. After that, the decision about separation will be entirely up to the Judge."

https://www.bailii.org/ew/cases/EWCA/Civ/2021/787.html