B (Children), Re

At an interim care hearing, the court’s task is to establish a holding position pending a final hearing. It should avoid determining disputed facts finally, restrict oral evidence to essential interim issues, and have regard to the guardian’s position. Those general principles yield where the circumstances require fuller investigation.

A public law dimension may arise from chronic emotional abuse and the risk of impaired development, even where an immediate threat of physical harm is not established. Procedural defects in obtaining protective orders do not justify returning children to danger if protective intervention is substantively required. Uncontradicted expert evidence of serious risk cannot be rejected merely because the judge forms a different impression of a parent.

The local authority appealed against orders made by Mr Nicholas Mostyn QC in the Family Division concerning two children whose parents were involved in longstanding and damaging conflict. The children had been placed on the child protection register for emotional abuse. After the mother made threats concerning herself and the children, the local authority obtained protective orders, although the initial applications were procedurally defective.

At the subsequent hearing, the judge treated the matter as private law residence proceedings, refused an interim care order, made shared residence orders subject to extensive conditions, rejected the effect of uncontradicted expert evidence, and refused the guardian ad litem’s requests to give evidence. The central issues were whether the judge had erred in procedure and substance, and what interim order should be made.

1. Appeal allowed. The judge’s lengthy and conditional shared residence order was set aside and replaced by the interim care order sought by the local authority. There was no order for costs, save for detailed assessment of the Community Legal Services Funding Certificates.
2. The guidance in Re W (A Minor: Interim Care Order), approving the earlier guidance in Hampshire County Council v S, applied equally in the Family Division. An interim order establishes a holding position pending final hearing. The court should be slow to make final findings on disputed facts, should restrict oral evidence to essential interim issues where substantial change is proposed, and should have regard to the guardian ad litem’s position.
3. The judge erred at the outset in concluding that there was no proper public law dimension. The relevant risk was not confined to physical injury or the seriousness of the mother’s recorded threats. The chronic emotional disturbance and highly abusive family conflict exposed the children to serious emotional harm and impaired development. That risk justified public law intervention.
4. The judge was not entitled to reject the evidence of Mrs Youell, the only expert witness, whose evidence that the children were unsafe in the mother’s care was clear and uncontradicted. His own impression of the mother and her recent compliance with undertakings could not properly displace that evidence. This was consistent with the approach in Re B [1996] 1 FLR 667.
5. The refusal to allow the guardian ad litem to give evidence was plainly wrong in the circumstances. Even without oral evidence, the judgment had to record and address the guardian’s submissions and explain why they were rejected.
6. The procedural defects in the local authority’s original applications were properly criticised, but they did not determine the children’s substantive safety. If protective orders were required in reality, procedural errors at their inception could not be remedied at the children’s expense.

• Court of Appeal (Civil Division): [2002] EWCA Civ 1225 — appeal allowed; the orders made below were replaced by an interim care order.
• High Court of Justice, Family Division: decision of Mr Nicholas Mostyn QC — refused an interim care order and made shared residence orders subject to extensive conditions.