B (Children), Re

On an urgent application concerning an interim care decision, permission to appeal should be granted where the proposed grounds are not fanciful. That threshold may be met by arguable failures to account for serious emotional harm, the guardian’s views, or strong professional evidence, and by treating an interim application as if it were a final welfare hearing. A judge should explain a departure from professional evidence and should not make an order which no party sought without proper justification. Pending the appeal, the Court of Appeal may make an interim care order under section 40(1), where the statutory conditions are met. Here, that jurisdiction was assumed on the basis that a care order included an interim care order and that an interim care order remained in force when the lower court dismissed the application.

Camden and the father, supported by the guardian ad litem, applied urgently for a stay and permission to appeal an order made on 22 March 2002 by Mr Nicholas Mostyn QC, sitting as a deputy High Court judge. The judge refused Camden’s application for an interim care order, made a supervision order until 30 September 2002, and made an interim joint residence order placing the children primarily with their mother, subject to extensive conditions.

The applicants argued that the judge had undervalued serious emotional harm and the identified risk in the mother’s care, and had failed to consider the guardian’s views and professional evidence. The central issues were whether the proposed appeal was properly arguable and whether the Court of Appeal had jurisdiction under the Children Act to make an interim care order pending appeal.

1. Permission and stay. Ward LJ granted permission because the application was not fanciful. The lower judge had found that the section 38 criteria were satisfied, but the proposed appeal raised arguable concerns about the balance struck. Serious emotional harm and identified risks from the mother’s volatility could make continued exposure contrary to the children’s welfare, despite the importance of avoiding separation from their mother. The judge had not taken account of the guardian’s views, had made an order which nobody sought, and had not explained why he should not follow overwhelming professional advice. He also appeared to have approached an interim care application on the basis of a full hearing. A stay of execution was therefore granted pending the appeal.
2. Section 40 jurisdiction. After further submissions, Ward LJ proceeded on the assumption that section 40(1) empowered the court to make an interim care order pending the appeal. For section 40(1)(a), he treated the reference to a care order as capable of including an interim care order. For section 40(1)(b), he treated the relevant time as the time when the lower court made its order, when an interim care order was in force. He recognised that the point might require further guidance after full argument.
3. Orders. An interim care order was made pending appeal, expiring on 30 April 2002. Any application for renewal was directed to the High Court. The appeal was directed to be heard by three Lords Justices, and public funding costs assessment was ordered for the mother and guardian ad litem.

1. Court of Appeal (Civil Division): On 27 March 2002, Ward LJ granted permission to appeal, granted a stay of execution, and made an interim care order pending the appeal.
2. High Court of Justice, Principal Registry of the Family Division: On 22 March 2002, Mr Nicholas Mostyn QC, sitting as a deputy judge, refused the local authority’s application for an interim care order and made a supervision order and an interim joint residence order.