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Desert island judgments: Re X: Emergency Protection Orders
Childcare lawyer Oliver Conway on the 2006 case that keeps him motivated and shows the importance of standing up for parents against systems that ‘don’t care’.
Re X: Emergency Protection Orders [2006] EWHC 510 (Fam) is the case I refer people to when they ask me why I have spent the best part of a decade supporting parents when the state seeks to remove their children.
The lesson that must be learned from Re X is that once the child protection process is begun, if it is based on inaccurate information, it can take months and sometimes years to get to the truth, while parents and children are separated from one another.
Whenever I lose motivation for my job, I come back to Re X. It is a judgment that speaks truth to power and shows that blind process, when unchallenged, can cause immense harm.
When my clients tell me a social worker has got something wrong, or that they did not do what they are accused of, I believe them until the evidence proves otherwise. Re X taught me the importance of standing up for parents against systems, because systems don’t care.
Sadly, though this judgment was handed down eight years before I started working in family law, I still see overzealous child protection professionals sacrifice justice on the altar of speed, with families torn apart as a result. I have appeared before magistrates who had no idea this judgment exists. I keep a copy saved in my emails for when an EPO application lands in my inbox.
Miscarriages of justice happen every day in our family courts, and this is why legal aid and representation are so vital.
About the case
Imagine you are worried about your child’s mental health, and you reach out to social services for help and support. There are some meetings where you are not represented by a lawyer or advised by one, the issues identified are your child’s father’s mental health, an incident of potential sexual abuse between your child and their cousin, and concerns around your child’s emotional well-being. At a meeting of professionals called a child protection conference, those professionals decide your child is to be placed on a register under the opaque category of ‘emotional harm’. The purpose of this is supposedly to get your family the support they need.
Without your knowledge, the social workers whom you asked for help are in meetings with their lawyers deciding whether you are harming your child. Luckily, while there are concerns, no professional says you should be separated from your child. You have not yet been assessed as a parent, nor in relation to your own mental health. However, you have agreed to these assessments and they are underway.
At a case conference, the manager of your child’s social worker is informed that you have taken your child to hospital with abdominal pains. At the end of the conference, the team manager ignores the advice of their lawyer and applies to the court to seek emergency protection for your child, from you. This stranger outlines their concerns to a panel of concerned citizens who are not legally trained. Those magistrates order the immediate removal of your child to foster care, based on the word of this stranger without you being present, without you even knowing a hearing is taking place. Within hours, you are met in hospital by four police officers and the team manager. You will not care for your child for over a year. All on the opinion of a stranger and the hurried decree of some other strangers in a secret court.
For over a year, you fight for your child to return home, but it is not until a three-week final hearing before Sir Andrew McFarlane, one of the greatest family lawyers in the world and now president of the Family Division, that justice is done and your child comes home.
Removal of a child from a parent is a grief beyond words. It is the ultimate interference in family life and always a breach of the child’s and parents’ human rights. I have had clients describe it like the removal of a limb or an organ. This is a trauma you and your child will carry for the rest of your lives. Imagine that this is inflicted on you because of a secret meeting of strangers that takes place without your knowledge – unfathomable.
Key points
•Sir Andrew McFarlane made it clear that concerns of emotional harm should never be considered significant enough to warrant removal of a child and that all those involved in such draconian applications must comply with strict guidance.
•The judgment is entirely anonymised to protect the child, but sadly this also shields the local authority, magistrates and child protection professionals involved.
•The case took away over a year of a girl’s childhood and cost the taxpayer £500,000.
•The judgment is not a polemic and stresses that this it was exceptional case. However, Sir Andrew made a £200,000 costs order against the local authority involved, which, in family law, is a huge sum.