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March 10, 2020

Interim Care Orders: New Developments or More of the Same?

There has been a measure of excitement generated by the recent case of C (A Child: Interim Separation) 2020 EWCA Civ 257. In particular, it has been posted on “Suesspiciousminds” and heralded as adding an additional component to the test for separation.

Before we all get too excited and start thinking it has ‘changed the law’ in respect of applications for interim care orders, let’s have a closer look to see what this authority actually adds to the existing case law.

The test to be employed when the court is considering separating parent and child at an interim stage of the care proceedings is well-established. There has been a long line of authorities on this topic which reinforces some very clear principles: the correct test for whether a child should be removed from his or her parents at the interim stage is to ask whether the child’s safety demands immediate separation[1].

In Re B (Care Proceedings: Interim Care Order)[2], the Court of Appeal held that the correct test, once the threshold criteria for an interim order have been satisfied, is one of whether the continued removal of the child from the care of his parents is proportionate to the risk of harm to which he will be exposed if he is allowed to return. The Court of Appeal reiterated this test in Re B (Interim Care Order)[3].

Where the safety of the child demands immediate separation from his parents, the test of whether the continued removal of the child from the care of his parents, has got to be one of determining whether that is proportionate to the risk of harm should he be returned.

In Re O (A Child: Interim Care Order)[4], the Court of Appeal took the unusual step of intervening in an interim decision, and held that the judge had erred in discharging an interim care order, in respect of a six-year-old boy who was living in foster care, as the judge had not undertaken the necessary balancing exercise as to the relative risks for the boy of staying in foster care or returning to live with his mother, who had a history of neglect, drug abuse and associating with risky adults.

So how much further does Re C (A Child)[5] takes us in this established line of reasoning? Not much further, I say. It simply re-establishes the very stringent provisions and the very high test which needs to be applied when the local authority apply to remove, or to justify continued removal.

The facts of Re C briefly concern a five-month-old baby in the care of her mother at a residential unit. The placement was not without its difficulties, but the final straw, which brought the placement to an end, was an incident whereby the mother fell out of her wheelchair whilst holding her baby. The unit gave notice and the baby was removed, and placed in foster care.

The local authority applied for authorisation for continued separation. The court at first instance refused the local authority’s application and placed the mother and baby in an alternative unit. The local authority and guardian appealed this decision.

The Court of Appeal, dismissing the appeal, reviewed the law applied at first instance and concluded that the Court had applied the correct test which was summarised as follows:

“(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 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.

(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.”

The only additional point which has been stressed in this summation of the test for removal is in paragraph 5. In my view this does not alter the test, or make it any more difficult for the local authority when applying for an interim care order.

Paragraph 5 simply re-affirms what every practitioner knows, which is that the local authority cannot present a linear view to the court on any application; holistic and carefully evaluated analyses of care options need to be provided by the local authority when formulating care plans, and the overriding objective, including proportionate responses, applies.

What Re C does helpfully remind us of is that local authorities need to ensure that the question of interim removal is not only about evidencing risk arising due to parental care, but also involves a careful consideration of the welfare of the child and how the child’s welfare needs can, and should, be addressed either by placement in foster care or leaving the child in the care of the parent(s).

Tanya Zabihi

[1] Re H (A Child)(Interim café Order) 2002 EWCA Civ 1932

[2] 2009 EWCA Civ 1254

[3] [2010] EWCA Civ 324

[4] 2019 EWCA Civ 583

[5] [2019] EWCA Civ 1998 at [2]