INTERIM REMOVAL……and so the ‘fight’ begins….

This is always a difficult and somewhat thorny application to deal with. The key case with the guidelines to the right initial approach and starting position is:

Court of Appeal case: C (A Child) (Interim Separation) [2019] EWCA Civ 1998 [2020] 1 FLR 853 (‘C (A child) 2019 summarises the current law:

(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with the right to respect for family life under Art 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent/child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate . The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the 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 a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.

Two significant cases set out some key principles when considering interim removal:

1. Hale LJ (as she then was) commented in RE O (Supervision Order) [2001] EWCA Civ 16 [2001] 1 FLR 923

“….the court should begin with a preference for the least interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children……unless there are cogent reasons to the contrary…..”

2. Thorpe LJ held in Re B (Care: Interference with Family Life) [2003] EWCA Civ 786 [2003] 2 FLR 813:

“……the judge may not make such an order without considering the European Convention for the Protection of Human Rights and must not sanction such an interference with family life unless he is satisfied that it is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children”

Cases which give some insight into applying the above test, and which may provide assistance and demonstrate how the test has been applied are:

C (a child) [2020] EWCA Civ 257

This case concerned a mother who had long standing drug addiction, a chaotic lifestyle and a potentially abusive relationship with the Father. The Mother became a wheelchair user following a leg amputation brought about by her drug use.

The Mother had been placed in a residential unit, and was maintaining an abstinence from drug use. This placement was not without its difficulties. Mother sustained a fall out of her wheelchair whilst holding the child. The Mother and child did not receive any injuries.

Although initially the court granted an application on an interim basis for separation, this was pending a contested hearing some two weeks later. At this hearing the Judge applied the test and concluded that ‘accidents happen’ and in any event removal would not be a proportionate response to the risk, stressing the importance of allowing positive attachment to develop during an assessment. The LA supported by the Guardian appealed. The Court of Appeal (Peter Jackson LJ), endorsed the reasoning of the judge at first instance, holding that the Judge had applied the law correctly and had balanced the risks and benefits of the available options. He opined that the Judge was entitled to find that separation was not necessary to take place at a critical stage in the development of the child-parent bond.

Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 [2020] 2 FLR 330 (30th April 2020)

This is another useful case, which demonstrates the LA’s failure to apply the principles of C (A Child) [2019]

In this case a grandmother had two children placed with her under an SGO made in 2013.

The LA put forward their application with haste and whilst the Guardian had not had any opportunity to speak or visit gave an analysis which was only received on the day of the hearing. The Grandmother had not had any opportunity to file any evidence in relation to this application.
The LA’s initial application was for the elder child who had been moved to foster care. At the hearing the LA extended its application to include the remaining child. The judge approved the removal of the remaining child. Following the Grandmother’s appeal, it was observed that whilst the first instance judge referred to the principles, the application was based on historical events and there was nothing which had happened to indicate that immediate removal of the younger child was necessary nor appropriate. The situation needed careful assessment and was a classic and clear case where an adjournment would have been appropriate.

Re DD (a child) (removal under interim care order) GD and another v A local authority and others [2021] EWCA Civ 36 (18th January 2021)

This is another case where the CA concluded that the guidance was not appropriately followed, and it endorsed the principles in C (a child)

The reasoning given by Baker LJ was (1) that the child was settled in her Mother’s care, (2) the interim arrangements had continued for over 14 months and (3) that it was a matter of fact that it was only a matter of weeks until the proceedings were due to be concluded. He was of the view that further discussions should have been held and thus it was possible to arrive at a solution which allowed the child to remain with her Mother until the conclusion of proceedings.

Further to this indication the LA amended its interim care plan, with agreed undertakings around further contact arrangements.

The Appeal was allowed and an ICO was substituted with amended care plans in the terms as outlined above, with the LA agreeing not to remove the child until the conclusion of the proceedings.


(A). A key feature to always be considered is that if the LA are making an application for immediate removal, it is crucial that they demonstrate what other available options there are and whether these have been fully explored. This is particularly important if removal at birth is being sought and/or during the first year of a child’s life where bonding and attachment are vital.

(B). The LA must provide all the evidence required to support their application and this must be done timely and allow all parties an opportunity to respond.

(C). Consideration as to whether the LA approach is relying on historical concerns only without any cogent evidence of current harm in any form.

D). Give consideration as to what other steps can be taken which would alleviate the need for immediate removal, particularly demonstrating what supervision, undertakings and written agreements etc., could be put in place.

It is always important to remember that the Court must look at the least interventionist approach, which does not advantage or disadvantage any party while proceedings are yet to be finalised.