Kay Stewart Considers D (A Child) [2021] EWCA Civ 787

This was a successful appeal against an order separating a newborn (one week old) from his mother, V. V is 21 and has learning difficulties but was currently carrying for her child. However, V’s social workers did not feel that V would be able to cope.

Proceedings concerning the child’s care had already started. On the night before the hearing, the Children’s Guardian filed a report against V, saying that she did not think it was safe for the baby to remain with V. Further, on the morning of the hearing itself, more reports arrived which stated that the situation had worsened for the newborn, and the local authority proposed that there should be a hearing in two weeks’ time as to whether the child should be removed from V’s care.

The local authority then changed its position near the end of the hearing, saying that the child should be in foster care by that same evening. The judge in allowed the order but expressed disquiet about the changing stance of the local authority.

The judge in this appeal held that the decision was not procedurally fair. The planning for the baby’s arrival had not been ideal, but the first judge should have considered whether the hearing was fair on V, and whether the newborn was at such a risk that it warranted immediate removal.

The appeal judge therefore held the hearing was unfair, as it was not listed to decide about the removal of the child, and no written arguments about removal had been presented either way. The local authority had changed its view at the last minute and it was unclear how that decision had been reached.

The judge emphasised that once a baby had been removed from its mother in this situation ‘it can be very hard to put them back together’. With that in mind, it was worth V being able to have her say, even if there was a short delay in the final decision. Therefore, the judge held that V should not be separated from her child yet.

Another hearing was arranged for the following week, and the lawyers acting on the case agreed to draw up short, simple document which would enable V to know the case to answer at the hearing.


This case shows that the courts are mindful of the impact separation can have on parental relationships, and that such decisions should not be made with undue haste and without a clear plan in place. What is striking about this case is the manner in which the local authority tried to separate V from her newborn. While their intentions may have been well-meaning, it was clearly unfair on V to face intense court proceedings so shortly after giving birth and without being able to prepare adequately for the case against her.

For further information on this topic or on any other legal area, please contact Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

Alina Dewshi

July 2021


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