Mother loses appeal over baby's removal

The "draconian powers" of social workers to order a child to be taken from a mother who turns out to be innocent is a cost to be paid to protect the vulnerable, appeal judges said today.

They were ruling on a case involving a mother who sued the police and local authority after her child was removed from her because of fears which proved to be groundless.

She was 22 when her child was born in October 2008 and they both went to hospital two months later after she reported the baby boy had stopped breathing.

Medical staff at Eastbourne General Hospital thought the child, identified as B in court, was fit to be released after two days but were concerned that the mother, A, had reported two other incidents of the baby stopping breathing.

No-one else had seen the incidents and a consultant feared it could be an example of the mother fabricating an illness - once known as Munchausen Syndrome.

The consultant was under a duty to notify the social services and the police were informed.

B stayed in the hospital for another five days and then was taken into foster care after the mother said she wanted to take the boy home.

Two days later they were reunited after she agreed to go into a mother-and-baby unit where it was found she was a capable mother and proceedings were discontinued.

Mr Justice Hedley, giving a ruling today after the mother appealed against a judgment dismissing her claims against East Sussex County Council (ESCC) and Sussex Police, said: "It is wholly unsurprising in those circumstances that the appellant should feel aggrieved at having been under suspicion of factitious illness, at having her child removed from her for two days and at having to attend a mother-and-baby unit.

"Nor indeed is it possible for anyone to feel other than sympathy for her plight.

"On the other hand child protection is just that. It is protection from the consequences of perceived risk."

He said there will be cases such as this one where the concerns were incorrect but that did not mean the measures taken were unlawful or wrongly taken.

"There has been now for some time heightened public concerns about child protection and it is not right to criticise ESCC for taking what with the benefit of hindsight might appear an unduly cautious or even heavy approach.

"In my judgment ESCC were entitled to conclude the exercise of statutory powers was necessary to protect B."

After dismissing her appeal, he said: "Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow.

"If they take action which ultimately turns out to have been unnecessary, they will have caused distress to an already distressed parent.

"On the other hand they are also invested with or have access to very draconian powers and it is vital that, if child protection is to command public respect and agreement, such powers must be exercised lawfully and proportionately and the exercise of such powers should be the subject of public scrutiny.

"This litigation demonstrates that child protection only comes at a cost; to an innocent parent who is subject to it based on emergency assessment of risk and to public authorities who have had to account in a judicial setting for the exercise of power.

"It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state."

Lord Justice Jackson, who also dismissed her appeal, said all three parties in the case were publicly funded.

"The costs to the public purse (approximately £80,000) exceed by an order of magnitude the modest damages which were in issue. Litigation of this nature hardly represents a wise use of public funds."