Formulated in 1989, the Children’s Act sets down a guideline for the protection of, and provision for, children in the UK.
The emphasis was always on keeping the children with their parents whenever possible and only taking children into the care of the authorities when absolutely necessary.
Section 20 of the act specifically deals with how the local authority designates and deals with children who require their help.
On 17 February 2015, Sir James Munby ruled on an interesting and potentially important case regarding Section 20 of the Children’s Act 1989, which focused on how it can, and should, pertain to children being taken into care.
The case of A (A Child)  EWFC 11 on the 17th February involved a young child that Darlington Borough Council wished to take into the custody of the local authorities, away from the parents. Munby reminded the Court that he agreed with a previous ruling in the case of YC v the UK by the European Court of Human Rights that “everything must be done to preserve personal relations and, where appropriate, to rebuild the family”, while cautioning this came with the caveat that “where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained”.
Perhaps most pertinently, Munby clarified that the “local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove”.
The family background is as follows: the mother of the child (child referred to as A) was in prison on charges of sexual offences with a minor, and dishonesty. Before A was born, an assessment session on 30 October 2013 took place involving a social worker and the father, and several others, which included the father’s extended family, to assess for suitability to take care of the child.
When A was born on January 11 2014, he was taken into temporary care and further assessments were made as to the suitability of the parents and the extended family. There was still a viability assessment of the paternal grandfather to complete and a further risk assessment of the mother, but these were never completed.
The social workers showed a high degree of bias against the father of the child. Munby says they were “too willing to believe the worst of the father”. The father had stated that he did not know the mother was being charged with several crimes at the time of conception. The father had attended several Court proceedings and was involved in the legal paperwork with the mother. He defended that he was aware of some of the minor offences but had no idea about the sexual offences. The authorities claimed this was “evidently untrue” which Munby pointed out was false and the claim was potentially highly improbable but not evidently untrue.
The authorities had noted the father’s immoral behaviour, which Munby pointed out had no relevance to the issue to child custody. Throughout their assessments and judgements, the authorities were against the father, mostly based on pre-conceived ideas. They said: “Unfortunately due to [his] previous inability to work openly and honestly with the Local Authority it makes it very difficult to accept what [he] states as truth”.
Nine months after the birth of the child, the assessments had still not been concluded by 23 September 2014, at which point the Designated Family Judge, Judge Taylor, noted that these assessments could, and should have, “been achieved pre-birth”. On 6 October 2014 the Children’s Guardian completed her case analysis and was “appalled” at the state of the case and the poor quality of the family assessments. The social worker originally assigned to the case went on maternity leave and the new social worker did not undertake any new assessments, merely continued along the lines of thinking of the first social worker, prejudices and all.
The Local Authority concluded that the child would be “at risk of suffering significant harm” if he returned to the father, and there would be a risk of “his needs being neglected through inappropriate care”.
This case was especially striking because of its prejudicial application of moral judgements carried out by the assessing authorities. Moral and immoral judgements have no place in a Court of Law and no place in the assessments of governmental employees as Munby rightly points out on several occasions. The allegation made about the fathers’ lies, his sexual relationships in the past and his use of alcohol were found to be either baseless or completely irrelevant to the case.
Munby said: “The justification for State intervention is harm to children, not parental immorality”. He went on to call the Local Authorities’ case a “tottering edifice built on inadequate foundations” and that “we must guard against the risk of social engineering”.
The case presented by the authorities did not rest on legal, but on moral precepts. In a separate case in February 2015 involving Northamptonshire Council, Justice Keehan found similar evidence of social worker powers being “seriously abused”, calling the work of the Local Authorities “unfortunate and woeful”.
These two cases, and more which are now coming to light, are creating concern for the aggressive pursuing of removal of children from parental care. In the case of A (A Child)  EWFC 11, not only did Sir James Munby rule against the Local Authority, he also heavily criticised the methods and checks that mean inadequate and incomplete social work such as this can even take place at all.
Muna Saleem is an associate solicitor with Crisp & Co