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The Court of Appeal allows a father's appeal against Interim Care Orders

If the local authority asks the Court to approve the interim removal of a child from its parent's care, it must prove the five-step test. The five-step test is set out in the case of C (A child) (interim separation) [2019] EWCA Civ 1998. If the test is not applied and satisfied and the Judge authorises removal, an appeal could be to follow. A recent example of this is J & Ors, Re (Children: Interim Removal) [2023] EWCA Civ 1266 (03 November 2023).

Facts of the case:

The family was referred to social services on a number of occasions due to concerns around domestic abuse between the parents and the children's exposure to drugs. In 2019, the parents separated, and the three children remained with the mother but had regular contact with the father.

In January 2022, the mother was arrested for drink-driving, and she had left the children alone overnight. She was charged with a number of offences, including child neglect. As a result, the children were placed with the father but returned to the mother after a few weeks.

The local authority attempted to engage the mother through the Public Law Outline, but this was unsuccessful and in November 2022, care proceedings were initiated under section 31 of the Children Act 1989. At first, the children remained at home for several months with their mother under Interim Supervision orders however, on 2 May 2023, following a referral from the Ambulance service detailing concerns around the mother's health, the children were placed back in their father's care.

At a hearing on the 25 May 2023, The Judge refused the mother's application for the children to be returned to her care and instead, made a child arrangements order providing that the children should live with the father until the next hearing or further order.

The Judge, however, was not satisfied with the local authority's proposal for the children's contact with the mother and on the 26 May 2023, at a contact review meeting it was agreed that the mother would have unsupervised contact with the children three days a week, with the handover to be at a contact centre. At a core group meeting on the same day, it was noted that the children were thriving in their father's care and there were no concerns about the level of care being afforded to them.

On the 4 July, the social worker spoke to the father after being informed by the contact centre that neither parent had attended at the centre over the weekend. The father informed the social worker that he had allowed the children to stay with the mother overnight. She advised him that the local authority did not agree to overnight contact. On the following Monday, the children informed the social worker that they had slept at their mother's house over the weekend, and she had told them to not tell the social worker about it.

On the 17 July, the local authority filed a statement from the Social Worker stating that they do not support the children remaining at home and that the three children should be placed in foster care under interim care orders.

Insufficient time was available at the hearing on the 20 July (which was listed to consider the local authority's C2 Application inviting the Court to determine the mother's contact arrangements) to consider the proposal and the case was listed for a contested hearing on the 26 July before Judge Oliver. That hearing proceeded on the basis of written evidence and oral submissions, after which he delivered an ex-tempore judgment.

At the hearing on the 26 July, the Judge granted the local authority application for interim care orders in relation to all three children and he refused an application made by the father for permission to appeal and refused an application by both parents for a stay of the order pending an application to the Court.

The Appeal

On the 3 August the father's solicitor filed a notice of appeal to the Court. Permission to appeal was granted by Moylan LJ on 22 September and the appeal was listed for a hearing on the 10 October.

In summary, the grounds for appeal were that the Judge misled himself about certain factual matters, failed to conduct a proper welfare checklist analysis, elevated what he wrongly called a 'risk of emotional harm' beyond what is intended by the interim removal harm test with the result that any balance of harm test he conducted was flawed, failed to conduct a proportional evaluation, failed to give any sufficient reasons why the children could not safely remain at home under an interim supervision order or interim care order with appropriate additional safeguards and wrongly took the local authority's refusal to agree to the children remaining at home under an interim care order as determinative of that option.

At the hearing on the 10 October, Counsel for the father argued that the Judge had failed to identify how the high hurdle for removing the children at an interim stage in care proceedings had been crossed. And that although Judge Oliver had been referred to the applicable legal principles in written submissions, they were not cited in the judgement and there was nothing to show that he had applied them when reaching his decision.

The appeal was supported by the mother and, the Children's Guardian.

Counsel for the local authority accepted that the father's care of the children had been good but submitted that the issue was the parents' toxic relationship, which was established on historic evidence and that the failure to comply with the agreed plan for contact showed that the father was not at that stage able to act in the children's best interests.

When discussing the appeal, Lord Justice Baker said: "This Court is fully aware that judges sitting at first instance in the family court are under great pressures of time and resources. But making all appropriate allowances, I concluded that the judge failed to apply the test for immediate removal and that, had he done so, he would have reached the opposite conclusion."

Lord Justice Baker added that in this case, there were clear reasons for interfering:

"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 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. […] 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), 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."

Lord Justice Baker concluded that had the Judge taken into consideration the positive evidence showing the quality of care being provided by the father, the risk of emotional harm if they were removed, the fact that the perceived risk of harm from unsupervised contact could be ameliorated by the Court order defining contact supported by a written agreement signed by both parents then he would have realised that the local authority's proposal was unnecessary and disproportionate. Therefore, the Interim Care order was set aside, and the children were returned to the care of their father.

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