C (A Child) (Interim Separation)  EWCA Civ 1998
(Judgement of Lord Justice, Peter Jackson)
We have all experienced cases, especially when representing a young mother who has been placed with the child, often a first child and a baby, in a mother and baby foster placement and that placement has broken down for a variety of different reasons.
The facts and the decision in this case are a very helpful reminder of the issues that the court needs to consider before approving a change to the care plan, especially well it is only a matter of possibly weeks before the final hearing.
In Re C The mother was only aged 20 when her son was born. He had been in the mother’s care since birth.
The mother had had a four year relationship with the father during which he had served at least two sentences of imprisonment for assaulting her, the most recent of which had been in the month of the child’s birth. A significant issue in the case was the mother’s ability and willingness to separate from the father.
A brief summary of the history of events is as follows:-
The local authority applied for an interim care order and removal to foster care on the day the child was born. Threshold was not an issue. After an initial contested hearing an interim care order was made on the basis that the mother and child should remain together at the home of the maternal grandmother, subject to the terms of written agreement.
The relationship between the mother and the maternal grandmother broke down and it was agreed that the mother and child would move to a mother and baby placement. It was intended that the placement would last for 12 weeks.
The local authority then applied to separate the mother and child having been informed that the mother had taken the child to meet the father.
The local authority’s application was adjourned and the mother and child remind in placement, the mother having confirmed that she understood the importance of complying with the rules of the placement and expressing a determination to show that she “could do it”.
The local authority’s parenting assessment confirmed that the mother’s ability to give basic care was good and that there appeared to be a warm and strong emotional bond between the mother and child. Unfortunately, it was said that the mother had not been truthful about telephone conversations she had with the father; that she had continued to minimise his abusive behaviour and to smoke cannabis. She was said to be reluctant to accept advice about her parenting and, by her actions, of causing instability to the child.
The main concern was that the mother remained emotionally attached to the father and that they had colluded in doing so had put the child’s safety at risk.
The report concluded that the “worries and risks greatly outweigh the positives” and recommended that the child be removed from the mother and placed in foster care.
The foster placement broke down but at a further hearing, despite finding that the mother had lied in her evidence about past events, the court did not approve the local authority’s plan for removal but directed the local authority to identify another mother and baby foster placement. The hearing was adjourned for one week. In the meantime the child was placed in foster care.
The local authority identified another mother and baby placement and, following a further hearing, the mother and child moved into this new placement.
The matter was listed for a final hearing.
Throughout this period the local authority had consistently argued that the child should be removed from the mother’s care but the court had consistently refused to endorse this despite the mothers lies and breaches of the placement rules.
Throughout the four-month period in question the child had not come to any actual harm. The concerns being about the risk of harm.
Sadly the second foster placement did not go well and broke down after a brief period following which the matter was listed for hearing. The child was again placed in foster care.
At this hearing both the mother and foster care gave conflicting evidence about the reasons for the breakdown of the placement, which the mother described as unbearable.
The foster carer gave evidence about the mothers verbal abuse and her breaking or throwing of items to the extent that the foster care was concerned for the safety of her own young grandchild. She said that she had felt intimidated and threatened, at that the mother was argumentative and unwilling to take advice.
The local authority again applied for separation. The mother applied for a further joint placement with the child.
The Recorder who dealt with this hearing granted the local authority’s application concluding that the mother had demonstrated an ability to fail to prioritise the child’s needs and that this, set against the history of her relationship with the father, meant that the court had no option but to order removal.
The recorder refused both an application by mother’s Counsel to grant permission to appeal and stay his order on the basis that there was another mother and baby placement available.
Following an immediate application for a stay Peter Jackson, LJ, granted a stay following which the mother and child were placed in a new mother and baby placement where they remained.
The mother appealed the Recorder’s decision.
The mother’s grounds for appeal were summarised as follows:
a) that the Recorder was wrong on the evidence to conclude that the mother had tried to sabotage the placement.
b) that the Recorder was wrong in law to find that, by so sabotaging the placement, this was sufficient to cross the very high threshold for interim removal.
c) that before hearing submissions the judge had informed the parties that on the evidence of the mother and the foster care he did not believe the test was met for removal.
d) that the Guardian’s position had changed from one of not supporting removal to supporting removal when informed that the court had found that the mother had deliberately sabotaged the placement.
It is important to note that the Guardian was not able to attend the removal hearing but able to give instructions over the telephone.
After hearing submissions Peter Jackson, LJ, had granted permission to appeal primarily on the ground of ground b) above, commenting that, in his opinion, the other grounds, and particular ground a), probably had no real prospect of success.
The appeal was allowed for the same reason.
Section 38 CA 1989 was summarised as follows:
1) an interim order is usually made at the stage when the evidence is incomplete.
2) to remove a child from the parent is an interference with the right to respect for family life under Art. 8
3) an interim care order will only be justified where it is both necessary and proportionate
4) a plan for immediate separation is only to be sanctioned by the court where a child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur
5) the high standard of justification that must be shown by the local 30 seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.
Granting the appeal on the basis of ground b) set out above Peter Jackson, LJ, said the following:
a) The Recorder had directed himself correctly on the law. He had been entitled to consider that it would be unsafe for the child to be with his mother unsupervised in the community. He was aware of the local authority’s repeated attempts to seek removal/separation and had been prevented from doing so. The recorder had noted that the mother had shown good parenting skills, that she was in a pressurized situation and that they were serious disadvantages to the child being removed from the parents to whom he was attached.
b) However, the recorder have not brought these matters into account when assessing the necessity and proportionality of separation. Instead he had based his decision on the events of the 11 days prior to the hearing. He was entitled to find the mother had repeatedly shown herself to be capable of being untruthful, immature and confrontational. On any view, her behaviour in the second foster home was completely self-defeating. but this had to be set alongside all the factors in the case.
c ) The case concerned an isolated young woman and a first child. A final hearing was due to take place in 12 weeks time and it cannot be foreseen whether the local authority’s application, which might include a plan for adoption, would succeed or not. In such circumstances, there had to be a high premium on keeping all options open to the court making the final decision. Moreover, the separation of mother and child at such a crucial developmental stage would, apart from its serious impact on the child and on the child/mother bond, risk skewing the final decision. It, therefore, required a very high level of justification.
d) The reasons that were said to justify separation were not, in the judges view, seen as sufficient. They were that the mother had sabotaged the placement and would inevitably do so again; that this would place the child at risk from his father; that the Guardian supported removal; that the mother ignored advice on safety and supervision issues; and that overall the mother had failed to prioritise the child’s needs over her own.
e) As to these matters, removal was not in fact the only realistic option when an alternative placement was available. The conclusion that the mother would inevitably sabotage this placement took no account of the history of the much longer first foster placement. This could not be ignored when considering her capacity to sustain supervision of this kind.
f) In the particular circumstances, too much weight could not be attached to the Guardian’s instructions when the court had not received a fresh analysis from her.
g) The mother’s rejection of advice, even on safety issues, was a matter of justified concern, but it was not at a level of seriousness that would, in itself warrant separation.
h) Even if the mother had been maintaining contact with the father, this has not been proved and, while the child was in a foster home, it did not represent an immediate risk to his safety.
i) The overall charge that the mother was putting her needs above the child’s was one that was more suitable for consideration at the final hearing than at an interim stage.
In my own recent experience the local authority has cited and sought to rely upon Re C as authority to justify separation following the breakdown of a mother and baby foster placement, notwithstanding an imminent final hearing following a long period in a mother and baby placement.
The facts and decision in Re C do not necessarily support this argument and, when representing any parent in this situation, it may be necessary to fully challenge the local authority’s application and ensure that the court is fully aware and the actual decision made and the reasons for it.