Care Proceedings: Williams and Another v LB Hackney

1 Care Proceedings: Williams and Another v LB Hackney Question 1 i.

By definition, care proceedings arise where a local authority decides to get involved in the operations of a family in order to keep a child safe. In doing this, it usually begins the process by instituting a court case. In the present scenario, the Local Authority (LA) in question will have to follow a certain procedure in so far as instituting the care proceedings is concerned. Section 31 of the Children Act 1 is the legal provision that gives an LA the mandate to institute a court case. This section provides that an LA may make an application to a court of law requesting one of two orders. First, the LA may request that the child with respect to whom the application is being made be placed under its care. Secondly, the LA may request the court to place the child under the supervision of a designated local authority. According to section 14(2) of the Children and Families Act, 2 the court case that the LA institutes will have to be concluded, without delay, within 26 weeks of the day on which the application was issued in court.

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1 2

1989.

2014.

2 However, before they can commence the care proceedings, there are several initial steps that the LA will have to take. Unless the situation at hand is of such a nature that the LA has to make an application to the court immediately, the LA has to ensure that they have done all that they can to ensure that they keep the child with the birth family. This much was held in the case of Williams and Another v LB Hackney3 where the court held that: “No local authority has the right or the power to remove a child from a parent who is looking after the child and wants to go on doing so.” Furthermore, Baroness Hale maintained that “…if the state is to intervene compulsorily in family life, it must seek legal authority to do so.”

This holding therefore suggests that, in setting a meeting with the parents, the LA will be making a final attempt to avoid ending up in court. This is especially because the mother, M, seems to be keen on raising the child. The LA will also have to send the parents a pre-proceedings letter which will not only outline the various concerns that they have, but will also allow the parents of baby T to explain how they have tried to mitigate the concerns. This letter will also invite the parents to attend a pre-proceeding meeting within 7 days of receiving the letter. 4 The meeting will be attended by the parents to the baby as well as the LA. In this meeting, the LA will outline their expectations with respect to the care that is given to the baby. If these concerns raised by the LA are not taken into proper consideration and the LA continues to have concerns for the safety of the child, then the LA will be able to institute the care proceedings. Before instituting the case, the LA will have to send the parents a letter of issue detailing that it is not in the best interests of the child to stay with the parents and, as such, the child should be

3 4

[2018] UKSC. Children Act, 1989.

3 removed and placed in care. In this letter, the LA will have to make it clear that they intend to institute care proceedings.

In the present scenario, the LA is concerned about the unexplained injuries that baby T has sustained. In addition to this, they have perceived that, even though the mother seems willing to take care of the baby, she may be unable to do so as she cannot account for the baby’s injuries. The fact that the couple also has another young two-year-old child also suggests that the family may be overstretched. There is also a fear that, when the child recovers, the parents may remove baby T from the LA’s jurisdiction. With these facts in mind, it is important to note that the LA can also make an application for an Emergency Protection Order (EPO).

Provided for under section 44 of the Children Act, 5 an EPO is usually made where the LA has reasonable cause to believe that a child is likely to suffer significant harm if they are not removed either from their parents’ control or from a place where they are located (in the case of baby T, this will be the hospital). Even so, it is necessary to note that an EPO only lasts for 8 days with the possibility of extending it for a further 7 days. During this period, the LA will acquire parental responsibility over the child as long as the order is in force. With respect to the procedure, the LA has to give the parents hearing notice of one day. If this application is granted, section 44(13) of the Children Act provides that the LA will have to allow the parents reasonable contact with baby T even though they will not be allowed to take the child out of the hospital.

In the case of X Council v B (Emergency Protection Orders) 6 Munby J set several principles that would be applied when granting an EPO. He noted that an EPO is a draconian and extremely harsh measure that required exceptional 5 6

1989.

FD 16 Aug 2004.

4 justification and extraordinarily compelling reasons. As such, the order would not be granted unless it could be demonstrated that there was no alternative. In other words, the separation of a child from their parents was only to be contemplated if immediate separation was essential to securing the child’s safety. The court also held that the evidence that an LA offered in support of the application for an EPO had to detailed and precise. The use of generalities was not encouraged because of the serious nature of the orders that were sought. It was also stated that parents had to be given sufficient notice of the evidence that the LA was intending to rely on in proving its case.

ii.

During the care proceedings instituted by the LA, the court will be guided by section 31(2) of the Children Act.7 Under this section, the threshold that the court should consider are outlined. It states that a court may only make a care or supervision order if it is satisfied on two fronts. First, that the child in question is either suffering or is likely to suffer significant harm. Secondly, that the harm or likelihood of harm can be attributed either to the care that is given to the child or the child being beyond the control of the parents. If these threshold criteria are established by the LA, then the court will make a decision based on the welfare principle that is set out in section 1 of the Children Act. This principle provides that, when a court is determining any “question with respect to the upbringing of a child or the administration of a child’s property or the application of any income arising from it,” then the “child’s welfare shall be of the court’s paramount consideration.”

Additionally, when making any decision about the upbringing factors of the child, the

7

1989

5 court will consider the range of orders that are available and provide those that would be best in the circumstances.

In the present scenario, what is notable is that only baby T has been found to have suffered injuries that cannot be explained. The fact that the baby had to be rushed to the hospital as well as the environment in which it is being raised may work as sufficient evidence to get removal under a care order. However, the LA may not be able to get the same order with respect to the two-year-old child. This is because, at present, they may not be able to demonstrate either that the child is suffering or that the said suffering can be attributed Either to the care given to the chid or the chile being beyond the parent’s control.

In deciding this matter, there are several orders that the court could make.

First, the court could decide that baby T should return to his parents after he has recovered from his injuries. Alternatively, the court could make a supervision order that requires the local authority to offer regular advice and assistance with respect to the child. Usually, the supervision order lasts for one year. However, it is also possible to have this supervision order extended for up to three years. In the case that the court opts to have the child removed from the care of the parents, it may decide that baby T can stay with a relative of trusted family friend. This type of order is known as a special guardianship order. It is worth noting that, ultimately, the decision of whether or not the two children under will be allowed to stay with their parents will be dependent on whether the parents can demonstrate that they have the capacity to offer proper care to their children.

It is also important to take into account that, for the most part, courts are usually interested in avoiding returning children to a situation where the child could be in future danger. In this regard, it constantly has to balance the interests of the

6 child with those of the parents. In the case of Re P (A Child),8 the court considered the case of a mother who had shown that she had the capacity to change in the course of care proceedings. The court noted that it would be appropriate to have a purposeful delay so that the proceedings could be extended beyond the statutory 26 weeks in order to test whether there would be sustainable change from the caregivers.

8

[2018] EWCA Civ 1483

7 Question 2 The pathway to assuming legal and parental responsibility by a surrogate is governed by the Surrogacy Arrangements Act. 9 The enactment of this Act was based on the recommendations of the Committee of inquiry into Human Fertilisation and Embryology. In light of the scenario in which Tom and Dustin are, it is worth noting that one of the primary concerns of the Warnock Committee was to address the risk of commercial exploitation of surrogacy. In trying to prevent the possibility of exploitation of power imbalances, the Committee recommended that a legislation be enacted to govern the manner in which women would be recruited for surrogate pregnancy.

One of the most important provisions of this Act is that surrogacy agreements are not enforceable in law. Additionally, this legislation also makes it clear that one cannot advertise that they are a surrogate seeking intended parents or are intended parents who are in search of a potential surrogate. The Act also provides that it is an offence either to arrange or negotiate surrogacy as a commercial enterprise. This legal framework is important in understanding the options that Tom and Dustin have not just in enforcing their rights, but also in their pathway to adoption. Even so, it is worth noting that even though this legislation provides the manner in which surrogacy is handled, it does not necessarily contain precise provisions regarding the child’s welfare. These provisions are found in the Human Fertilisation and Embryology Act (HFEA).10 The HFEA provides that, in order to establish parenthood, Tom and Dustin will have to make an application to the family court for a parental order. A parental order will be able to transfer legal parenthood from the surrogate to the intended parent. In 9

1985.

1990.

10

8 this case, it is important to note that this parental order can only be made with Angela’s consent. Typically, the parental order process takes place after birth. Even though they are not married, Tom and Dustin will be able to make the application.

Section 54(2) of the HFEA11 provides that the applicants for a parental order must either be husband and wife; civil partners of each other; or two people who are “living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation with each other.” Arguably, Tom and Dustin fit in the third category.

Section 54 makes provisions for the conditions that must be fulfilled before a court can issue a parental order. First, Tom and Dustin, as the intended parents, will have to demonstrate that they have reached the age of the majority. Secondly – as has been shown above – they have to fall within the categories of people contemplated under section 54(2). Thirdly, the surrogate (Angela, in this case) has to provide consent to the parental order no earlier than 6 weeks after the baby has been born. The other criterion is the that the child must have been conceived artificially and be genetically related either to Tom or Dustin.

The Act also provides that the intended parents will have to demonstrate that they have been living with the child. 12 The other important is that Tom and Dustin will have to ensure that they make the application for the parental order within 6 months of the birth of the child. When the application for the parental order is made, either Tom or Dustin will have to demonstrate that they are domiciled in the UK. Finally, unless there has been the relevant permission issued by the court, the surrogate in question should only be paid reasonable expenses.

11 12

Ibid.

Ibid.

9 In the present scenario, Tom and Dustin have arguably fulfilled all the criteria outlined in section 54(2) of the Act save for the one requiring the surrogate’s consent. They will not be able to obtain the parental order without Angela’s consent.

However, two related issues complicate the situation. The first is that Angela has expressed her unwillingness to support Tom and Dustin in becoming the child’s legal parents. Secondly, Angela is making a demand for additional compensation, therefore turning the entire surrogacy arrangement into the kind of commercial enterprise that the Surrogacy Arrangements Act was trying to prevent.

The importance of a parental order in this situation cannot be overstated. Both parties to the surrogacy arrangement will be affected. Without the parental order, Tom and Dustin will not be able to assume parental rights. Furthermore, Angela – as the person who gave birth to the child – will not only be the legal mother but will also have parental responsibility over the child. This responsibility is mandated by section 33 of the HFEA.13 In addition to this, if Angela is married, then her husband will become the child’s legal father, even if there is no biological relationship between Angela’s husband (if she has one) and the child. In the event that Angela has a civil partner, then that partner will also be the child’s legal parent.

On the part of Tom and Dustin, the lack of a parental order will severely affect the extent to which they will be able to assume and exercise parental responsibility over baby Ray. First, they will not have the authority to make decisions regarding the child’s education and medical care. Secondly, Tom and Dustin will be unable to travel abroad with the child. Thirdly, Tom and Dustin will face significant legal complications in the event that they separate. They will also face challenges when it comes to questions of inheritance and pensions. Finally – and perhaps most importantly – without a parental order, Tom and Dustin will have to involve Angela in 13

Ibid.

10 future decisions that affect their child. As Theis J noted in the case of Re A V B (Parental Order):14 There is a real risk that those who care for children born as a result of these arrangements may be inadvertently sleepwalking into an uncertain legal future for their much-wanted child. That uncertainty is very likely to be detrimental to that child's long-term welfare.

Equally, the case of Re AB (Surrogacy: Consent)15 demonstrates the difficulty that could arise from a surrogate’s refusal to consent to a parental order.

Just as in the case of Tom and Dustin, all criteria for a parental order had been met except the one that required the consent of the surrogate. Theis J noted that this refusal would have two consequences, which can also be applied in the case of Rom and Dustin. The first is that the child would remain with Tom and Dustin, who will be their biological and psychological parents but will not be able to be their legal parents. Through a child arrangements order, Tom and Dustin will have parental responsibility that will last until the child attains the age of majority. The second consequence is that Angela, who wishes to play no part in the life of the child, will continue to be the child’s legal parent as provided under sections 33 and 35 of the HFEA. It is worth noting that, in this case, adoption may be the closest alternative for Tom and Dustin in so far as assuming and exercising parental responsibility is concerned. Similar to a parental order, the adoption order will extinguish Angela’s responsibilities as a surrogate and give Tom and Dustin permanent parental status.

Furthermore, even though both orders have a transformative capacity – as was noted by Theis J in the case of AB v CD,16 – a parental order…

14

[2015] EWHC 2080 (Fam) [13].

15

[2016] EWHC 2643.

16

[2015] EWFC 17

11 …proceeds on the assumption one of the applicants is the biological parent.

That is one of the key criteria in s 54 HFEA. It doesn't change the child's lineage as an adoption order does; a parental order creates a legal parentage and removes the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.

Consequently, then, while Tom and Dustin may be able to pursue an adoption order under the Adoption and Children Act 17 on account of Angela’s refusal to be involved in any other legal processes, this legal route is bound to full of complications. The best strategy for them – as was seen in the case of Re AB (Surrogacy: Consent)18 – is to make an application for a parental order and appeal to the court to make an order that will be in line with the baby’s best interests.

17

18

2002.

[2016] EWHC 2643

12 Bibliography Case Law Re A V B (Parental Order) [2015] EWHC 2080 (Fam) [13] Re AB (Surrogacy: Consent) 2016] EWHC 2643 Re P (A Child) 2018] EWCA Civ 1483 Williams and Another v LB Hackney [2018] UKSC X Council v B (Emergency Protection Orders FD 16 Aug 2004 Legislation Adoption and Children Act 2002 Children Act 1989 Children and Families Act 2014 Human Fertilisation and Embryology Act 1990 Surrogacy Arrangements Act 1985 Policies Report of the Committee of inquiry into Human Fertilisation and Embryology 1984