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December 4, 2023

The recently reported Court of Appeal decision of J & Ors, Re (Children: Interim Removal) [2023] EWCA Civ 1266 is another reminder of the test to be applied when the court is deciding whether a child/children should be removed from their parents care before the final hearing. This was a successful appeal against the making of an interim care order with a plan of immediate removal.

In applying the principles set out in the leading case of C (A Child) (Interim Separation) [2019] EWCA Civ 1998, the judgement in the decision in J & Ors, Re (Children: Interim Removal) emphasises the importance of :

  • The court considering, in undertaking its assessment of risk, whether the risk of harm if the children were to be removed, was outweighed by the risk of harm if they remained with their father. The Court of Appeal said in J & Ors that at first instance, that this question was never addressed
  • The court considering a less interventionist option of allowing the children to remain at home under either an interim care order (if agreed by the local authority) 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.
  • The court not applying the test of “the immediate risk of serious harm” as the test for interim removal which, ‘as this Court made clear in Re L-A (Children) [2009] EWCA Civ 822, is not the test’.
  • Allowing a short stay of the order to enable an application to be made to the Court of Appeal. The court’s refusal to allow a short stay in this case was described by the Court of Appeal as ‘contrary to authority and wrong in principle’.

The facts of J & Ors, Re (Children: Interim Removal) were that the children were placed with their father. There had been a long history of social care involvement with the family. There was a risk to the children from the unregulated behaviour of their mother. There were background concerns about domestic abuse between the parents and the children’s exposure to drugs. There were also concerns about the mother’s mental health and child neglect, when the children had previously been living in her care. The care given to the children by the father was however described by professions as very positive. 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”.

The father had however allowed the children to have overnight contact with their mother contrary to the plan of the local authority. There was also evidence that the parents had encouraged the children to lie about this fact. The court of first instance had found that the fact that the children had been encouraged to lie about the fact that they had been allowed overnight contact with their mother and said that given that the parents ‘have been lying to the local authority, given that they claim that they did not understand, which I do not actually accept, then the parents are not at the moment capable of acting in the children’s best interests’.

In the first instance decision the judge said, in addressing the welfare checklist that:

Their emotional, physical and educational needs. The issue here is the emotional needs, them living a lie, them being put in the middle is going to cause them emotional difficulties, no question about that. Is it urgent in that respect? Well, the answer is yes, because each time the children are exposed to going to the mother’s house, doing something which is against what was indicated, that is putting them at emotional harm and emotional risk.’

The Court of Appeal criticised judge of first instance for this approach saying that the judge failed to balance the perceived emotional harm of the children remaining in their father’s care against the emotional harm of being removed from him.

J & Ors, Re (Children: Interim Removal) [2023] EWCA Civ 1266, at para 31 the Court of Appeal said that:

‘Had the judge taken into consideration the very positive evidence about the quality of care being provided by the father, the risk of emotional harm if they were removed, and the fact that the perceived risk of harm from unsupervised contact could be ameliorated by a court order defining contact supported by a written agreement signed by both parents, he would inevitably have realised that the local authority’s proposal was unnecessary and disproportionate. Instead, he should have adopted the less interventionist course, either, if the local authority agreed, under an interim care order or, if they did not, by continuing the interim supervision order.

Short stay of the order

The Court of Appeal in J & Ors, Re (Children: Interim Removal) concluded by saying that father’s application for a short stay or the order should have been allowed. Baker LJ stated that:

‘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’.

The judgement of J & Ors, Re (Children: Interim Removal) refers to the guidance given in the reported case of Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 per Peter Jackson LJ at paragraphs 36 to 38 for the procedure on seeking a short stay. That guidance is as follows:

‘The current arrangements are that this court can be contacted during working hours on civilappeals.registry@justice.gov.uk between 9.00 am and 4.15 pm and out of hours through the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer the matter on to the Duty Clerk. Urgent applications should whenever possible be made within court hours. Unless already filed, the applicant or the applicant’s representative will be required to give an undertaking to file the necessary application form and court fee. Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay.

Claire Starkie