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Langley and Others v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173

Appeals concerning the execution of emergency protection orders.

Langley and Others v Liverpool City Council and Chief Constable of Merseyside Police [2005] EWCA Civ 1173

Court of Appeal: Thorpe, Dyson and Lloyd LJJ (11 October 2005)

Summary
Appeals concerning the execution of emergency protection orders.

Background
These proceedings concerned the lawfulness of the removal of three children of the family into the care of foster parents. After a five-day trial, the judge found that: the Council had acted unlawfully in relation to the removal of all three children; the Council was liable to all five claimants (including the parents) for assault and false imprisonment as well as for breach of their rights under Article 8 of the European Convention on Human Rights ('the Convention'); and the Chief Constable had acted unlawfully in relation to the removal of the youngest child, and he was liable to him for assault and false imprisonment. But the judge dismissed the claims by the parents and the youngest child that the Chief Constable had violated their Article 8 rights.

Both the Council and the Chief Constable appealed against the findings of liability, and the youngest child and the parents appealed against the dismissal of their claim that the removal of the youngest child was in breach of their Article 8 rights. At the heart of these appeals lay an important question concerning the powers of the police under the Children Act 1989 ('the Act') to remove children who are in need of emergency protection, in particular the relationship between sections 44 and 46 of the Act.

The court reviewed the facts, the statutory framework, and the judgment of the trial judge, and considered the following two questions: (1) was the judge right to hold that, once an emergency protection order ('EPO') had been granted under section 44 and so long as it remained in force, the police could not exercise the power to remove a child under section 46 even if the constable had reasonable cause to believe that, unless the child was removed, he or she was likely to suffer significant harm? and (2) on the assumption that the criteria in section 46(1) were met, were there any limitations on the power of the police to remove a child under section 46 where an EPO was in existence? The court then proceeded to assess the lawfulness of the removal of the children, the liability of the Chief Constable and the Council therefor, and the lawfulness of the decision to seek an EPO, as well as the execution by the Council of the EPOs in respect of all three children.

Judgment
Held, (1) dismissing the Chief Constable's appeal, (2) dismissing the Council's appeal against the findings of liability in relation to the removal of the youngest child, but allowing it in relation to the removal of the other two children; and (3) allowing the appeal of the first three claimants against the dismissal of their claims for breach of Article 8, that:

(1) the removal of the youngest child was unlawful, and the police officer who came to remove him should have asked the Council's Emergency Duty Team ('EDT') to execute the EPO rather than forming his own judgment as to whether to remove the child under section 46;

(2) the Council had played a major part in securing the removal of the youngest child, by failing to advise the police officer to ensure that the child remained in the house until members of the EDT could come to execute the EPO; but the Council's decision to seek and execute the EPO in respect of the other two children was a reasonable and proportionate response to the threat that they faced; and

(3) the removal of the youngest child by the police officer was unlawful and therefore not 'in accordance with the law', and it was no answer to the claim to find that the police officer's actions were 'not disproportionate to the situation as he found it'.

Accordingly, in relation to the questions posed above, the court found that (i) removal of children should usually be effected pursuant to an EPO, and (ii) section 46 should be invoked only where it was not practicable to execute an EPO. In deciding whether it was practicable to execute an EPO, the police must always have regard to the paramount need to protect children from significant harm.

Thorpe LJ added his own comments, from the perspective of a family lawyer, to the judgment of the court, and confirmed that the Council had been correct to seek an EPO in respect of the two older children, since Parts IV and V of the Children Act 1989 provide the state, in appropriate circumstances, with power to intervene in the life of a family.

Read the full text of the judgment here