ICOs and new-born babies: fresh guidance from the High Court
Nottingham City Council v. LW and others [2016] EWHC 11 (Fam)
Mr Justice Keehan has given clear guidance on the procedure for seeking removal of a new-born baby. It particularly applies to cases where the Local Authority has been involved pre-birth.
The key criticism from the judge was that care proceedings were issued 12 days after the child’s birth, despite the social workers having already been involved with the family and being aware of the birth. As is often the case, the court could not accommodate a hearing until some days later, which compounded the delay.
A number of points are highlighted:
· No great reliance should be placed on how long a hospital was prepared to keep a new born baby as an in-patient; this is not a reason to delay issuing an application [30].
· In particular, it must be borne in mind that a hospital cannot detain a baby against a parent’s wishes, and that the capability of the maternity unit to keep the family might change within hours depending on demand [30].
· The availability of a Police Protection Order did not afford the parents or child the “the degree of participation, representation and protection as an on notice interim care order application” [30].
· “the indication of a maternity unit as to the date of discharge of a new born baby ought never, save in the most extraordinary of circumstances, set or lead the time for an application for an interim care order in respect of a new born child” [30].
· Where the pre-birth plan is for removal of the child at birth, it was essential and best practice to make the application on the day of the birth [31].
· Once there is sufficient evidence to support an ICO application, the obtaining of additional evidence from the maternity unit must not cause delay in the proceedings [32].
The court opined that Local Authorities must have clear procedures in such cases, including undertaking risk assessments of the parents which should be completed at least four weeks prior to the expected delivery date. Such assessments should be immediately disclosed to the parents and their solicitors, if instructed, to give them a chance to challenge the proposed care plan [33].
The judge’s comments at paragraphs 41 and 42 make essential reading:
‘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… Given that in the vast majority of cases a local authority will be actively involved with the family and/or aware of the pregnancy and the estimated date of delivery, I cannot conceive how such a requirement places an unreasonable and/or disproportionate duty upon a local authority. Further it is likely that a local authority’s failure to act fairly and/or timeously will be condemned in an order for costs’ (see [41]-[42] of the judgment).