In my judgment it is clear beyond argument that HHJ Cleary construed paragraph 10 of the decision in Re L as a decision that altered the law and that raised the bar against the applicant local authority. By that evolution he was bound and only the Court of Appeal could unbind him. For the reasons already sketched, that, in my view, was a misdirection. Plainly the judge was wrong to think that the words of Ryder J that there should be an imminent risk of really serious harm prevented him from doing what he instinctively felt the welfare of the children required. That that was his instinct seems to me to be plain from paragraph 160 of his judgment.
Their Lordships did not substitute their own decision for that of the Judge and have remitted the issue of disposal (the LA agreeing that they should do so) saying
Although that is an unattractive course it is a necessity given that in the interim it seems that here have been no fresh causes for concern and that, given some extra support that has been introduced, some improvement has been noted in the mother’s standard of care. Another pragmatic reason is that the local authority recognises that any short term placement should keep these four children together and that they will need time in order to find such a resource.
To my mind, the effect of this judgment when viewed in its entirety is not to suggest that there is anything wrong with Ryder J's formulation of the approach to interim removal but that such cases require careful analysis & consideration of the evidence, particularly in the chronic neglect case, and the reasons cited for disposal indicate just why these cases are so tricky at an interim stage. See my earlier post . There is, perhaps, an argument for saying that the chronic neglect case involves a situation in which children are always at imminent risk of serious harm. But much depends on the nature of the feared harm. Removal might well be justified in the sort of cases where the neglect concerns can be shown to involve a continual series of 'accidents' requiring medical attention or continual rough handling or where a parents' lack of understanding of child care issues generally results in just below par parenting but with occasional potentially very serious issues (such as inability to administer medicine appropriately) or a continued association with a sexual offender. There will remain cases of a much more borderline nature where the court may feel that although the concerns are serious they can be sufficiently contained on an interim basis with an appropriate support package or that at the very least they can be sufficiently contained until a hearing can be organised which provides a proper opportunity for the parents' representatives to read all the papers (usually voluminous in a chronic neglect case) and make representations or even directly challenge limited parts of the evidence which tend to suggest that some critical point has been passed which tips the case over into removal.