Dijen Basu KC and Matthew Holdcroft successfully defended the police in the High Court in ABC & others v Derbyshire County Council and Chief Constable of Derbyshire Constabulary [2023] EWHC 986 (KB) in a case in which a family claimed over £1.2m for unlawful arrest of the parents, unlawful removal of the children, violation of their human rights and negligence. The Claimants’ costs estimate to the end of trial was almost £1.3m.

The facts were highly unusual. Safeguarding concerns were raised by a paediatrician of Fabricated or Induced Illness (FII), a very rare form of child abuse. The parents were regularly taking the children to non-mainstream medical practitioners in private practice, albeit all registered with the General Medical Council, and procuring invasive tests and treatments for them.

The Defendants decided that the parents could not be told of the suspicions of FII before they were arrested, with the children being removed from their care. While the preferred option had been for the local authority to apply to the Family Court for an ex parte interim care order under s.38 of the Children Act 1989 immediately after the parents were arrested on suspicion of child cruelty offences, this was not possible and police officers instead took the children into police protection under s.46 of the Act, which entails no judicial oversight.

The trial judge, Mrs. Justice Hill, held that the s.46 power was available to the police only in ‘exceptional circumstances’ to separate children from their parents but found that the police had proved that this action had had been justified in order to safeguard the children. The Court was satisfied that the medical professionals involved had concluded that the children would be at immediate risk of significant harm if the parents became aware of their concerns, and that all of the professionals had agreed on the plan for removal of the children.

The parents’ claims for damages for negligence were dismissed. The Court held that the Bolam test applies to the actions and decisions of social workers with respect to children in their care and found that the decisions taken did not fall outside the range of reasonable responses open to a reasonably competent and careful social worker. The Court also found that the Chief Constable’s officers had not been negligent and that the Claimants could not show any material loss.

The Article 8 ECHR claims of all of the Claimants were dismissed, the Court holding that the Defendants had shown that their actions were lawful, necessary and proportionate.

Importantly, the learned judge also held that the principle in R (Lumba) v Secretary of State for the Home Department [2012] 2 AC 245 applied, so that, if her conclusion on the lawfulness of the use of s.46 to remove the children was wrong, they would have been removed in any event, by the Family Court making an ex parte ICO with removal, at or around the same time as s.46 had been invoked.

The case is an excellent example of multi-agency working in a highly challenging, and extremely rare, child protection case involving FII.