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D (A Child) [2021] EWCA Civ 787

This is a judgment of Lord Justice Jackson written in plain English. It concerns a successful appeal of the lower court’s decision to sanction removal of O, a newborn baby, from his mother, V, who has learning difficulties.


This was an appeal heard on 21 May 2021 in respect of O. He had been born the previous week. His mother, V, is 21 and has learning difficulties. She has her own support workers. The court commented that good plans were not made during V's pregnancy for what would happen after O was born.

The local authority (LA) had found somewhere for O and V to be together, supervised by two or three adults all the time. In the meantime, the proceedings started and there had been hearings on four consecutive days.

O's social workers did not feel that V could cope, even with support, but they tried to find somewhere for them to be assessed together. That was not successful.

There was a hearing the following week. It was set up for case planning but the night before, the Children's Guardian filed a report saying that she did not think it was safe for O to stay with V.

On the morning of the hearing more reports arrived which set out that things had not improved for O and in some ways, were worse. However, when the remote hearing began at 2pm the LA's proposal was that the court should set up a hearing in two weeks' time to decide whether O should be removed from V's care.

However, at 3.50pm, when the two-hour hearing was nearly over, the LA's position changed and they said that O should be placed in foster care that evening. The Judge made the order sought but he was unhappy about the lack of support that V had been offered before the birth and felt that the LA's position was confused.

V's lawyers urgently tried to appeal and an order was made in the Court of Appeal at 9pm that O should not be removed that night. The appeal was then heard only 2 days later.

The appeal

It was said on behalf of V that the way the decision came to be made was not fair.

The Court of Appeal recognised that the judge was in a very difficult position, because the planning for O's arrival had not been as good as it should have been. However, he should have considered whether the hearing was fair to V and, if it was not, whether O's situation was really so bad that he needed to be taken away immediately even though the hearing had not been fair.

It was decided that the hearing was not fair because:

• It was not listed to decide about O's removal

• There had been no written evidence setting out the arguments for and against removal

• V had not been given a chance to put forward her views

• The LA changed its position at the very end of the hearing, and it was not clear who took that decision or why.

The court said that these would be difficult issues for any parent, but especially V as she has learning difficulties and had only given birth last week.

The court concluded that this was not a case where the risk was so bad for O that V could not even be given a couple of days in which to prepare her case and have a fair hearing.

The Court of Appeal granted permission to appeal and allowed the appeal. There was a hearing already listed for the following week where a decision about separation could be taken and the court ordered documents to be prepared so that V would know in advance the case she has to answer at that hearing.

Case summary by Sophie Smith-Holland, Barrister, St John's Chambers

For full case, please see BAILII