B (children), Re

Crossing the statutory threshold for an interim care order does not itself justify making the order. The court must then consider the available options, balance the relevant welfare factors and explain its choice.

An order authorising removal from family life must be necessary and proportionate. The court must also be satisfied that no less radical order would adequately protect the children. Where immediate removal is unnecessary, the application may instead be adjourned with liberty for the local authority to apply on short notice.

A local authority commenced child-protection proceedings concerning six minor children after an adult sibling told her psychiatrist of sexual abuse by their grandfather and abuse by their mother. Sumner J found reasonable grounds for believing that the children had suffered, or were likely to suffer, significant harm. He made interim care orders subject to protective arrangements concerning interviews and any removal.

The parents appealed from the High Court, Family Division. They challenged the evidential threshold, the absence of a separate welfare and proportionality assessment, and the need for an order empowering removal when the authority had accepted that the children could be interviewed at home.

1. Appeal allowed unanimously. The statutory threshold for an interim care order was plainly crossed. The judge was entitled to assess the evidence broadly and realistically. The psychiatrist’s professional standing, her decision to disclose concerns despite confidentiality, the allegations concerning both the grandfather and the mother, and the evidence of possible attempts to close ranks provided reasonable grounds for believing that the children had suffered, or were likely to suffer, significant harm.

2. The parents had not been denied an opportunity to test the psychiatrist’s evidence. Once her statement had been filed and relied upon, they could seek to challenge it and require her attendance. It was unsafe to infer that she would refuse further participation when neither side had asked her to provide further assistance.

3. A finding that the section 31 threshold is crossed does not complete the judicial task. Before making a care order, the judge must consider all available options, balance the relevant factors and give reasons for the ultimate choice. The transfer of discretion over a care plan to the local authority occurs only after the court has properly decided to make the order.

4. Where an order would empower the local authority to remove children from their family, the court must consider the Article 8 rights of the children and adult family members. It may sanction interference with family life only when the interference is necessary and proportionate and no less radical order would adequately promote the children’s welfare. The failure to undertake this second-stage exercise was fatal to the interim care orders.

5. The proportionate course was to place the burden on the local authority to seek further judicial authority before removal. The interim care orders were replaced by an order adjourning the application, with liberty to apply on short notice before the listed hearing on 4 June 2003. A CAFCASS guardian was appointed.

1. Court of Appeal (Civil Division): The court granted permission, allowed the appeal and replaced the interim care orders with an adjournment of the application, with liberty to apply on short notice. [2003] EWCA Civ 786

2. High Court, Family Division: Sumner J found the statutory threshold crossed and made interim care orders for the six minor children until 4 June 2003. Permission to appeal was refused. No citation is stated.