Interim Removal

 

LEGAL PRINCIPLES RE INTERIM HEARINGS & REMOVAL OF CHILDREN FROM PARENTS (as at 17.03.23)

INTERIM THRESHOLD  

Threshold Criteria – Section 31(2) Children Act 1989 

1. The relevant threshold criteria are: 

(a) the child concerned is suffering, or is likely to suffer, significant harm; and 

(b) that the harm or the likelihood of harm is attributable to –   

1. 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. 

2. the child’s being beyond parental control. 

Harm – Section 31(9) Children Act 1989 

2. “Harm” means ill-treatment (including sexual abuse and forms of ill-treatment which are not physical) or the impairment of health (including physical or mental health) or development (meaning physical, intellectual, emotional, social or behavioural development) including, but not limited to, impairment suffered from seeing or hearing the ill-treatment of another. 

Standard of Proof – Section 38(2) Children Act 1989 

The court is only required to be satisfied there are reasonable grounds for believing that the threshold at s.31(2) CA 1989 are made out. 

The court is not required to make findings of fact to the civil standard at an interim stage, nor be satisfied that the main threshold document is proved. If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it can say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.  Re G (Children: Fair Hearing) [2019] EWCA Civ 126. 

Relevant date 

The relevant date for establishing the threshold criteria are met is the date on which protective measures were initiated in respect of the child concerned, where those measures have been continually in place; Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577. 

The making of an interim care order is an essentially impartial step which effectively maintains the status quo and does not give a local authority in whose favour it is granted a tactical advantage over other parties; the regime of an interim care order should operate as a tightly run procedure closely monitored by the court and affording all parties the opportunity of frequent reviews as events unfold (Re G (Minors) (Interim Care Order) [1993] 2 FLR 839 and  Re M (A Minor) (Appeal: Interim Order) (No 1) [1994] 1 FLR 54). 

An examination of the case law continues to demonstrate that interim removal should very rarely be ordered and that very great care indeed should be taken to ensure that there is proper pre-proceedings disclosure and scrupulously fair procedures adopted at hearings. 

In Re O (Supervision Order) [2001] 1 FLR 923, EWCA Civ 16,  Hale LJ (as she then was) emphasises that ‘the court should begin with a preference for the less 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 …’ 

In Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, EWCA Civ 3040  , the feared harm to the subject child derived from the mother’s personality traits which in stressful situations, including conflict with the father, led to her becoming irrational, aggressive, emotionally demanding and incapable of putting the children’s needs before her own .. (para 15)).  At the time of the interim hearing resulting in the child’s removal there was no evidence of physical harm; on the contrary, the evidence was that he was thriving.  Hale LJ (as she then was) said (para 17):

In Re G (Care: Challenge to Local Authority’s Decision) [2003] 2 FLR 42, EWHC 551 Munby J held: ‘The fact that a local authority has parental responsibility for children pursuant to s 33(3)(a) of the Children Act 1989 does not entitle it to take decisions about children without reference to, or over the heads of the children’s parents.  A local authority, even if clothed with the authority of a care order, is not entitled to make significant changes in the care plan, or to change the arrangements under which the children are living, let alone to remove the children from home if they are living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision is made.  After all, the fact that the local authority also has parental responsibility does not deprive the parents of their parental responsibility.’ 

In Re B (Care: Interference with Family Life) [2003] 2 FLR 813, EWC CIV 786 Thorpe LJ held: ‘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 that 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.’ 

In Haase v Germany [2004] 2 FLR 39, the European court held (para 95 ff): ‘ The fact that  a child could be placed in a more beneficial environment  for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the ‘necessity’ for such an interference with the parents’ right under Art 8 to enjoy a family life with their child…before public authorities have recourse to emergency measures in such delicate issues as care orders, the imminent danger should be actually established.  It is true that in obvious cases of danger no involvement of the parents is called for.  However if it is still possible to hear the parents of the children and to discuss with them the necessity of the measure, there should be no room for an emergency action, in particular when, like in the present case, the danger had already existed for a long period.’ 

Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575 seemed at first blush to change the test for interim removal, the often relied upon standard being that the child had to be “at imminent risk of really serious harm” in order for the court to approve a plan of removal. Practitioners and courts alike were tending to the view that in cases of emotional harm or chronic neglect children would not be removed prior to final hearing.   

In Re L Mr Justice Ryder was considering a case in which it was argued by the local authority and the Guardian that a child should be removed from the mother before the final hearing to protect from the undisputed risk of harm which the mother’s partner presented. Her case was that she needed support to help us separate from him and she sought a residential assessment. Mr Justice Ryder granted the mother’s application. In his judgment he was critical of the apparent assumption by the local authority and the Guardian that all that needed to be demonstrated was that the interim threshold were made out and that removal should therefore follows as night follows day. He commented:

‘that is a profound error of perception that regrettably on the facts of this case also amounts to an error of law. Nowhere is there a recognition that removal is a separate consideration from the existence of the interim threshold or the need for an interim order.’  

From his judgment the following principles emerge:  

a) In approaching the issue of interim removal, the court must consider whether there is an imminent risk of really serious harm, that is whether the risk to the child’s safety demands immediate separation;  

b) If there is no such imminent risk, the question of a parent’s ability to provide good enough long-term care is a matter for the court at the final hearing and should not be litigated at an interim stage, effectively pre-judging the full and profound trial of the local authority’s case and the parents’ response;  

c) Professionals must take great care not to conflate the issues of the test to be applied to the question of removal (an acute safety question necessitating the child’s removal) and the nature and extent of the risk of harm which will only justify removal if it is an imminent risk of really serious harm, not just a heightened perception of risk as evidence emerges, if that  risk can be contained by adequate arrangements. 

The lead judgment of Lady Justice Black in Re GR (Children)  [2010] EWCA Civ 871 neatly summarises the subsequent judical commentary on Ryder J’s judgment in Re L: 

“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, EWHC 3404 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” 

and 

“that separation is only to be ordered if the child’s safety demands immediate separation.” 

40. 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.”  

41. 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.  

42. 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.” 

43. 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. ” 

The effect of this judgment when viewed in its entirety is not to suggest that there is anything wrong with the formulation by Mr Justice Ryder of his approach to interim removal but that such cases require careful analysis and 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. 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.   

Other Case Law on the principles: 

Re B (A Child) (Interim Care Order) [2010] 1 FLR 1211 (25.1/1.09), EWCA Civ 1254 was an appeal from a refusal to remove a child at risk of suffering psychological harm.  The county court judge was criticised by the Court of Appeal for failing to follow the s38 test and authority (he having referred to the case law as a “dangerous guide”). However the test the judge had set himself was approved by the Court of Appeal namely “whether the continued removal of the child from her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents” [para 31]. It was the judge’s failure to then follow his self-direction that was criticised. Safety can include psychological welfare. 

Re B (Interim Care Order) [2010] 2 FLR 283 (30.3.10), EWCA Civ 324 Court of Appeal) : once the court is satisfied that the threshold criteria is met, whether or not interim care orders were made becomes a welfare issue. The relevant question is then whether it would be ‘better for the child to make the order than to make no order’ and whether removal is proportionate to the risk of harm the child will be exposed to in his parent’s care. The court was considering the renewal of interim care orders after children had been removed during a parenting assessment. The Re B (previous case) test could be universally applied and the court should determine “whether the continued removal of the child from her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents” [paras 17 -21].  The court also emphasised that interim care orders are just that and parents are entitled to a hearing at which they may argue that the orders should not be extended and/or that the children should be returned to their care [para 25]. 

Re S (Minors) [2010] EWCA Civ 421; [2010] 2 FLR 873 

The Court of Appeal sets out no less than seven errors the judge made in permitting immediate removal where it had not been demonstrated that immediate separation was required [paras 31-37]. 

Re F (Children) (Care Proceedings: Interim Care Order) [2010] EWCA Civ 926, 2 FLR 1455 

An appeal against removal. This CA decision approved Re L-A once again, restated the correct test and emphasised the principles set out in Re H namely that: 

….on an application for an interim care order, the court should limit itself to issues that cannot await the trial and must not extend to decide issues that are being prepared for trial at that final hearing.

The second proposition is that separation is only to be ordered if a child’s safety demands immediate separation.

Parents who had newborn twins had had their older children removed, the final hearing in the case of one child having been a matter of weeks previously. They had not in the intervening weeks engaged in therapy recommended. The CA concluded that the judge had breached both limbs of the test for interim removal in particular by concentrating on issues that were for final hearing.  

In Re C (A Child) [2011] EWCA Civ 918, (Court of Appeal): the order must be a necessary and proportionate response to the concerns which impel the application for the care order being made, (Ward LJ [§2]) 

The Court of Appeal restated the test for interim separation in the case of Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998.   

The 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 (unsuccessfully). 

Peter Jackson LJ described the ability of the court to make interim care orders under s.38 Children Act 1989 as one of the family court’s most significant powers and summarised the series of propositions in respect of interim separation found in the previous case law [§2]: 
 

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.  
 
The removal of a child from a parent is an interference with their 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.  

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.  

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.  

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. 

In C (A Child: Interim Separation) [2020] EWCA Civ 257 Peter Jackson LJ confirmed the test in Re C (see para 11), and stated that the decision as to whether an interim order should be made calls for the evaluation and balancing up of factors relevant to the child’s welfare [§§ 7 and 12]. 

In short: 

The authorities on removal require the court to ask itself: 

1. Whether the child’s safety (using that term to include both psychological and physical elements) requires removal and; 
2. Whether removal is proportionate in the light of the risks posed by leaving the children in the care of their parents. [§22] 

A child is only to be separated from a parent where the risk to the child’s safety, which includes their physical as well as emotional and psychological welfare, demands immediate separation; 

If the child has already been removed from their parent’s care, continued separation must only be ordered where it is proportionate to the risk of harm to which the child would be exposed if they were to be returned to their parent’s care and a very high standard must be established to justify the continuing removal of a child from home, per Thorpe LJ [§27] Re M (ICO: Removal) [2005] EWCA Civ 1594. 

Into the balance must come not only the harm that may befall children in their home, but also the harm that may be occasioned to them by removal from their home; per Black LJ [§61] L (A Child) [2013] EWCA Civ 489. 

The making of interim orders and separation of a child from their parent(s) must be considered in the context of tolerating and accepting diverse standards of parenting [§14], per Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 [§50] (Sir James Munby P in Re A (A Child) (2015) EWFC 11) 

Some examples  

It is never easy to say what cases will justify removal and it is important to analyse the evidence in each case carefully, but it may be easier to see the potential for justification in cases such as when a parent has a mental health problem or a drug or alcohol addiction that means their behaviour and cooperation level is unpredictable or when there is a serious unexplained injury and the provisional view is that it is not accidental or when a parent repeatedly declines to allow access and does not cooperate with the child protection plan. Other less frequently encountered cases might be where the child is out of control or is expressing a clear wish not to remain in the home or there has been a prolonged period of failure to thrive.  

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.  

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 parent’s lack of understanding of childcare issues generally results in just below par parenting  but with occasional very serious issues (such as an inability to administer medicine or feed  a child at sufficiently regular intervals so that there is a failure to thrive concern) or a continued association with a sexual offender.   It may also be easier to see the potential for justification of removal in a case where a parent has a mental health problem or a drug or alcohol addiction which means that their behaviour and co-operation is unpredictable or when there is a serious unexplained injury and the provisional medical view is that it is not accidental or when a parent repeatedly declines to allow access and does not cooperate with the child protection plan. 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 part of the evidence which tend to suggest that some critical point has been passed which tips the case over into removal.   

In one particular case (Re D (Unborn Baby) [2009] EWHC 446 (Fam), [2009] 2 FLR 313 ) where removal was deemed to be justified, Baby D was born to a mother who was in prison for threatening her small daughter with a knife. Social workers from B MBC were afraid that if the baby’s mother knew the council planned to put the child up for adoption she might kill the child at birth. She had told a social worker that her children would be better off dead than in the council’s care. Munby J said: ‘ it goes without saying that a newborn baby in the first seconds or moments of life is exceptionally vulnerable and that a distraught mother, who has already demonstrated her capacity to threaten violence to her children, would be capable of causing catastrophic injury to the child within a matter of moments’.   

Another interesting point about this case is that the local authority was granted an EPO without notice to the parents and without them being aware of the local authority plans to remove the judge had “no hesitation whatever in saying that in the highly unusual circumstances of this case that very exceptional step is, as it seems to me, entirely justified and indeed imperatively the required in the interest of the as yet unborn child.” 

Lady Justice Black further considered the issue of interim removal in L (A Child) [2013] EWCA Civ 489. In this case the mother and her baby had already been separated for a period of 2-3 months as a result of a decision which was the subject of challenge. The mother was in prison and wished to care for the baby in the prison mother & baby unit. The local authority were clearly of the view that the mother would not be able to care for the baby in the long term although it did not argue that there would be a short-term risk to the child on the unit. 

The court referred to the earlier summary of the relevant principles to be applied in Re G-R. 

Black LJ held that the court was in principle entitled to take account of the fact that the mother & baby had already been separated and that the mother’s wish would entail the child being removed from a foster placement in which he had settled, with the prospect of being separated from the mother in due course, if the local authority’s pessimism was well-founded. However, here the District Judge had fallen into error in concluding that the child’s emotional safety would be compromised because of the disruption in moving between placements and the likely effect on the proceedings being effectively stayed causing delay before long-term decisions could be made. Black LJ did not consider that these points about emotional harm were captured by the authorities on interim removal / separation: 

“In saying that an interim care hearing was not the place for an evaluation of the longer term position, I am not saying that the district judge had to decline to look at the possible outcome of the final hearing at all. He was required to manage the case procedurally and for that purpose he was entitled, I think, to make a provisional evaluation of it on the evidence assembled so far and needed to do so in order to determine how the case should proceed thereafter. As he recognised, he needed to keep a firm control over the proceedings and had to ensure that in so far as possible the timetable for the proceedings did not get in the way of A’s timetable. I agree with counsel for M that the way in which he could properly have minimised the impact of delay on A was to schedule an early final care hearing, rather than taking decisions at the interim care hearing which in my view came perilously close to prejudging the outcome of the case. Depending on the complexion of the evidence by that stage, that early final hearing would provide an appropriate forum for consideration of whether the prospects of M successfully caring for A herself were so poor as to leave no alternative to the making of a final care order or whether there was sufficient optimism to justify a further postponement of the decision or the making of some order which would permit continued exploration of the possibility that A might live with her.  

In addition to the poor prognosis, as he saw it, for M’s case and the delay to the plans for A that would result from the need to test out her good intentions when she came out of prison, what influenced the district judge here was the harm that would be caused to A by disrupting the attachment that had begun to grow between him and the foster parents in order to place him with M now and the chance that A would be subjected to further moves later on.  

I would not dismiss such disruption to A’s attachments and his settled living arrangements as irrelevant but it had to be put into the balance alongside the other factors that were relevant to the district judge’s decision and accorded the weight that was appropriate given the Court of Appeal guidance on the use of interim care orders. It may be argued that it is not essential from A’s point of view that he goes to live with M now because he would be able to transfer his attachment to her later on if a placement with her were later to be approved by the court. However, looking at the matter from a different angle, there can be little doubt that if M is to have the best chance of caring for him, she needs to have the opportunity to get to know A as soon as possible and to form a bond with him. She was with him for a matter of days only, in the hospital immediately after he was born. He will have been developing rapidly since then and the once monthly contact which the local authority arranged thereafter would not enable M to build up a relationship with him to serve as a foundation for care of him in the future and thereby to improve his chances of being able to live with her.  

In the short term, there was no danger to A’s safety, physical or emotional, in the prison unit and it was inappropriate, as I have said, to class the longer term issues as a danger to A’s emotional safety of the type contemplated in the authorities. Accordingly, in my view, the relationship of A and M should have been preserved pending a final adjudication of the issues in the care proceedings. Concern as to delay should have been addressed by making arrangements for this final adjudication to take place promptly rather than by foreshadowing its determination by the making of an interim care order which kept M and A apart. It is for these reasons that I was in favour of allowing the appeal and substituting an interim supervision order for the district judge’s order.  

Pauffley J made some important points in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) about the manner in which interim hearings should be dealt with and evidence which will suffice to justify interim removal. 

She reminds us of the three well known propositions derived from the Court of Appeal’s decision in Re LA (Care: Chronic Neglect) [2010] 1 FLR 80 applicable to interim care orders.

Firstly,

“…that the decision taken by the court must necessarily be limited to issues that cannot await the substantive hearing and must not extend to issues that are being prepared for determination at that fixture”.

Secondly,

“… that separation is only to be ordered if the child’s safety demands immediate separation”

And thirdly, that a local authority in seeking to justify the removal of a child from home necessarily must meet a very high standard – reiterating what had been said in Re K and H [2007] 1 FLR 2043 namely 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.”  

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

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

The catalyst for the proceedings was an incident on 20 March, when police were called to the home, where one of the children was outside, screaming.  She said that she had been hit by her aunt; the grandmother and aunt denied it and described her behaviour as having been particularly challenging since the family had been in confinement.  The child was taken into police protection and placed in foster care. The other child remained with the grandmother. 

The local authority made an urgent application for an interim care order with a view to the child remaining in foster care. The Guardian who had not had any opportunity to speak or visit gave an analysis which was only received on the day of the hearing. It supported the local authority’s application. The grandmother had not had any opportunity to file any evidence in relation to the application. 
 
At the hearing the LA extended its application to include the remaining child, apparently encouraged to do so by the stance of the Guardian and the judge granted this application. 

The Court of Appeal was critical of the local authority over its change of position and of the Guardian for a lack of real analysis. The application was based on a central concern of long-standing emotional harm but on the facts it was not such as to justify removal. The Court of Appeal observed: 

On the information then before the court it could not in our view be plausibly argued that something had now happened to make [the younger child]’s removal that evening necessary.  The circumstances in which [the older child] had been taken into foster care showed the need for [the younger child]’s situation to be carefully assessed. The evidence did not remotely justify his peremptory removal and there is nothing in the judgment that is capable of persuading us that it did. 

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

The CA concluded that the guidance was not appropriately followed, and it endorsed the principles in C (a child). 

Baker J allowed the appeal, saying: 

“On reading the papers in preparation for this hearing, I reached the preliminary view, shared by my Lady, that, notwithstanding the clear and careful way in which the judge approached the issue, her conclusion was not in accordance with the legal principles set out above, having regard in particular to (1) the fact that D is extremely settled in the care of AH (2) the fact that the interim arrangements have continued for over 14 months since the proceedings started (3) the fact that it is now only a matter of weeks until the proceedings are finally concluded and (4) the volatility in the relationship has been known about throughout the proceedings. It seemed to me that, with further discussions, it ought to have been possible to arrive at a solution that allowed D to remain with AH until the conclusion of the proceedings whilst protecting her from the adverse impact of the ongoing volatility in the adults’ relationship. In short, this did not look like a case where the risk to her safety and welfare required D’s immediate removal.” 

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. 

Applying the principles from the cases cited above, a local authority and a court should consider: 

• Does the child’s safety demand their immediate separation? Interim removal is only to be sanctioned if this is the case. Safety is to be considered in a broad sense, to include the child’s emotional and psychological welfare. 
  
  
• Are the necessarily very high standards for the removal of the child met? 
  
  
• Is the decision to make an ICO limited to issues that cannot await the fixture? The decision must not extend to issues that are being prepared for determination at that fixture. 
  
  
• Is there any justification for an order interfering with this child’s right to family life? 
  
  
• If there are any concerns established which might justify some sort of order, the court should prefer a less interventionist legal regime than an ICO with a removal plan.  Is there a way in which the concerns of the local authority can be met without the need for removal? 
  
  
• Have the parents been properly involved in the decision-making of the local authority or afforded the proper opportunity to make their case before a decision is made? 
  
  
• Is the order being considered really aimed at ensuring assessment of the child (not in itself sufficient justification for removal)? 
  
  
• What evidence can be filed in support of the application? Is it full, detailed, precise and compelling?   
  
  
• What proposals are there for contact between the child and either of her parents?  These need to be clear and substantial.  
  
  
• Has a case conference been held and the minutes made available? Has the parent been given a copy of the CPC minutes?  Are there other relevant documents which the court will expect the parents to have seen? 
  
  
• Has the local authority carried out a meaningful assessment of the family and can it produce evidence of its conclusions? 
  
  
• Is the local authority concerned because it cannot get evidence or an agreement to an assessment?  This will not by itself justify the making of an ICO if other remedies can be implemented. 
  
  
• Can removal be justified before a Guardian has been appointed, reported or had sufficient opportunity to consider the case independently? 
  
  
• Can the decision on removal be postponed for a short time to allow for any procedural fairness issues to be dealt with, without undue risk to the child or with short-term high level intervention or monitoring? 
  
  
• Is the alternative proposed adequate and in the interests of the child?  If a foster placement is proposed does the proposed carer have the necessary skills, appropriate family set up and meet any particular ethnic or cultural needs?  Is there anything about the child which militates against an unplanned move (such as autism affecting the child’s ability to manage change)?   
  
  

Short Version for Submissions 
 

The court is not required to make findings of fact to the civil standard at an interim stage, nor be satisfied that the main threshold document is proved. If the court is satisfied that there are “reasonable grounds” for believing the threshold is made out, it can say so, but, in doing so, the court is not making final findings pursuant to section 31 on matters that must be proved to the requisite standard in due course.  Re G (Children: Fair Hearing) [2019] EWCA Civ 126. 

The test for interim separation is set out in the case of Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998.   

Peter Jackson LJ described the ability of the court to make interim care orders under s.38 Children Act 1989 as one of the family court’s most significant powers and summarised the series of propositions in respect of interim separation found in the previous case law [§2]: 
 

• 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.  
  
  
• The removal of a child from a parent is an interference with their 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.  
  
  
• 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.  
  
  
• 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.  
  
  
•  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. 
  
  

In C (A Child: Interim Separation) [2020] EWCA Civ 257 Peter Jackson LJ confirmed the test in Re C (see para 11), and stated that the decision as to whether an interim order should be made calls for the evaluation and balancing up of factors relevant to the child’s welfare [§§ 7 and 12]. 

A child is only to be separated from a parent where the risk to the child’s safety, which includes their physical as well as emotional and psychological welfare, demands immediate separation; 

If the child has already been removed from their parent’s care, continued separation must only be ordered where it is proportionate to the risk of harm to which the child would be exposed if they were to be returned to their parent’s care and a very high standard must be established to justify the continuing removal of a child from home, per Thorpe LJ [§27] Re M (ICO: Removal) [2005] EWCA Civ 1594. 

Into the balance must come not only the harm that may befall children in their home, but also the harm that may be occasioned to them by removal from their home; per Black LJ [§61] L (A Child) [2013] EWCA Civ 489. 

The making of interim orders and separation of a child from their parent(s) must be considered in the context of tolerating and accepting diverse standards of parenting [§14], per Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 [§50] (Sir James Munby P in Re A (A Child) (2015) EWFC 11)