Interim Care Orders – requirement to grant short stays

Children – Public Law

03 January 2024

J & Ors, Re (Children: Interim Removal) [2023] EWCA Civ 1266

In this case (reported on 23rd November 2023) the Court of Appeal overturned a decision to authorise interim removal and reiterated the requirement to grant short stays to allow such orders to be appealed unless a child’s safety requires their immediate removal

In this appeal, the Court of Appeal was concerned with a decision of His Honour Judge Oliver to authorise the removal of the three subject children from their parents’ care under an interim care order.

Lord Justice Baker gave the leading judgment. He found that the Judge at first instance had failed to apply the test for immediate removal summarised by Lord Justice Peter Jackson in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 and that, had he done so, he would have reached the opposite conclusion.

Lord Justice Baker set out the Court of Appeal’s three “most prominent” reasons for interfering with the judgment at first instance decision, as follows:

First, nowhere in the judgment does the judge refer to the very positive evidence about the care being provided to the children by their father. The evidence showed that they were thriving in his care. The parenting assessment had concluded that, with support, he had the capacity to meet their needs. The social worker had recently confirmed that there were no safeguarding concerns about the children’s placement and observed that they were “very happy and comfortable around their father”. None of this was mentioned in the judgment. The positive evidence about the father’s care of the children was plainly an important factor in the assessment of whether the children’s welfare and safety required their immediate removal but it did not feature in the judge’s welfare analysis.

Secondly, the judgment contains no analysis of the risk of the children suffering emotional harm if removed from their father’s care. It is true that, when considering the effect of a change of circumstances, the judge acknowledged that removing the children from their parents would “have a negative effect” on them. He added that “the mitigation of that would be they would no longer be experiencing emotional harm”. But the implication of that observation is that they would not suffer emotional harm through being removed. As they had spent their entire lives to date in the care of one or both of their parents, the suggestion that they would not suffer emotional harm if removed was plainly implausible. The question for the court was whether the risk of harm if removed was outweighed by the risk of harm if they remained with their father. That question was never addressed.

Thirdly, in order to satisfy itself that the “the length and likely consequences of the separation [were] a proportionate response to the risks that would arise if it did not occur”, it was incumbent on the court to scrutinise the available resources that might remove the need for separation. As the Supreme Court acknowledged in Re H-W (Children) [2022] UKSC 17 (per Dame Siobhan Keegan at paragraph 45) it is a “longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order”. The intervention required here was to prevent the children having unauthorised contact with their mother. The question was whether removing them from their father was a necessary and proportionate course to meet that requirement.

Further, Lord Justice Baker found the judge at first instance “ought to have given very serious consideration to the less interventionist option of allowing the children to remain at home under either an interim care order or an extension of the interim supervision order, buttressed by a clear order defining the mother’s contact and a written agreement signed by both parents.”

Lord Justice Baker went on to identify a further point where the judge below fell into error, as follows:

His refusal to allow even a short stay of the order to enable the father to apply to this Court was contrary to authority and wrong in principle: see Re N (Children: Interim Order/Stay)[2020] EWCA Civ 1070 per Peter Jackson LJ at paragraphs 36 to 38. Even if the judge’s view as to the risks to the children remaining at home was correct (which in my judgment it was not), they could never be described as so acute as to justify denying the father a short stay to apply to this Court….

He further stated: courts and practitioners must follow the course identified by Peter Jackson LJ in Re N. Unless the child’s safety and welfare require their immediate removal, the court should always allow an unsuccessful party the opportunity to apply to the appellate court. As summarised in Re N, arrangements are in place for an urgent application to this Court to be considered very promptly.

This case very importantly stresses that stays should be granted more readily than they are and should be the rule rather than the exception.

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