About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Monday, 24 February 2014

Interim Care & Removal / Separation

The approach to be adopted by the courts is well summarised in the Court of Appeal judgment in Re GR (Children) & others [2010] EWCA Civ 871 and the lead judgment of Lady Justice Black:

33. It may nevertheless be of assistance to look briefly at the proper approach to the granting of interim care orders. It is trite law that the question must be approached in two stages. The first stage is encapsulated in s 38(2) Children Act 1989 and is sometimes referred to as the threshold for an interim care order. S 38(2) provides:

"(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)."

34. S 31(2) provides:

"(2) A court may only make a care order or supervision order if it is satisfied –

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."

35. If the court is satisfied as required by s 38(2), it must then go on to consider, as a discrete issue, whether or not to grant an interim care order. This is a question with respect to the upbringing of the child, so, in accordance with s 1 Children Act 1989, the child's welfare is the court's paramount consideration. The delay principle (s 1(2)) applies, as does the no order principle in s 1(5). As the court is considering whether to make a Part IV order, it is also to have regard to the welfare checklist set out in s 1(3). There are existing authorities in relation to interim care orders which serve as a guide as to how to approach this second stage of the court's determination, the purpose of which is, of course, to establish a holding position pending a full hearing.

36. In Re H (a child)(interim care order) [2002] EWCA Civ 1932, Thorpe LJ said:

"38. … Above all it seems to me important to recognise the purpose and the bounds of an interim hearing. There can be no doubt that a full and profound trial of the local authority's concerns is absolutely essential. But the interim hearing could not be allowed to usurp or substitute for that trial. It had to be properly confined to control the immediate interim before the court could find room for the essential trial.

39. …..In my judgment, the arts 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it. In effect, since removal from these lifelong parents to foster parents would be deeply traumatic for the child, and of course open to further upset should the parents' case ultimately succeed, that separation was only to be contemplated if B's safety demanded immediate separation."

37. In Re M (ICO: Removal) [2005] EWCA Civ 1594, Thorpe LJ referred, in the final paragraph of his judgment, to "the very high standards that must be established to justify the continuing removal of a child from home" as well as to the need to weigh in the balance the potential risk to the child of extended separation from their parents.

38. In Re K and H [2006] EWCA Civ 1898, Thorpe LJ said:

"16. Decisions in this court emphasised that at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection."

39. In Re L-A [2009] EWCA Civ 822, influenced by the decision of Ryder J in Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575 which he considered to have altered the law, the trial judge had not made an interim care order when it appears he might otherwise have been inclined to do so. The reference in Ryder J's judgment in Re L which had influenced him was to "an imminent risk of really serious harm i.e. whether the risk to ML's safety demands immediate separation". On appeal, it was common ground that Ryder J had not intended to alter the approach set out in the three Court of Appeal cases to which I have referred already. Thorpe LJ took the opportunity to restate the principles established by those authorities. From paragraphs 38 and 39 of Re H, he extracted two propositions:

"that the decision taken by the court on an interim care order application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture"


"that separation is only to be ordered if the child's safety demands immediate separation."

The important point from Re M was the very high standard which a local authority must meet in seeking to justify the continuing removal of a child from home. As to Re K and H, he identified the key paragraph as paragraph 16 providing that interim removal is "not to be sanctioned unless the child's safety requires interim protection."

40. There could be no doubt, therefore, following Re L-A, that it was to the traditional formulation in the Court of Appeal authorities that courts and practitioners should turn, not to Ryder J's phraseology.

41. The most recent case to which I would refer is Re B and KB [2009] EWCA 1254 in which the appeal was against the dismissal of the local authority's application for an interim care order. The trial judge had given himself what was described as an "immaculate self-direction" in these terms:

"whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care".

However, Wall LJ, with whom Thorpe LJ agreed, was persuaded that the judge had failed to go on properly to conduct the required balancing exercise. He said:

"56. Speaking for myself, I find L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection."

42. It may do no harm to invite particular attention to Wall LJ's definition of "safety" in this passage in Re B and KB. The concept of a child's safety, as referred to in the authorities which I have cited, is not confined to his or her physical safety and includes also his or her emotional safety or, as Wall LJ put it, psychological welfare. Indeed, it may be helpful to remember that the paramount consideration in the court's decision as to whether to grant an interim care order is the child's welfare, as section 1 Children Act 1989 requires, and as Wall LJ shows when he says that in his view "KB's welfare did demand her immediate removal from her parents' care".

1 comment:

ashted agnosci said...

One of the real problems in interim removal and indeed Final Orders is the Courts reliance on hearsay which can be multiple and anonymous. Social Workers now rely almost exclusively on multiple and anonymous hearsay for evidence and the new PLO encourages this because obtaining first hand evidence is time consuming and expensive. The Magistrates Court sitting as an FPC just do not have the expertise to fully investigate evidence and make ICOs mostly exercising their inherent bias in favour of Social Workers. Once ICOs have been made and children removed subsequent Courts will not return children. We are the National Consumer Helpline on 0871 711 2889 and we help and assist parents of children who are in LA care. We know of many cases where children have been removed not only on anonymous hearsay from Social Workers but downright lies. We know of a case where Social Workers lied to a Court to obtain ICOs by saying the father was a convicted rapist and the mother mentally ill. The parents tried to have the SWs tried for perverting the course of justice but the police refus