M (Children)

An interim care order which continues a young child’s removal from the family home requires cogent evidence satisfying the statutory harm threshold. Speculative professional concerns do not meet the very high standard required.

The court must balance the risk of harm arising from return against the emotional harm and practical consequences of prolonged separation from parents and siblings. A placement created in disputed circumstances cannot be preserved merely as the status quo. The likely duration of separation and its effect on the prospects of eventual reunification are material considerations.

A local authority began care proceedings concerning six siblings. Interim care orders were made in the parents’ absence for the four youngest children, but only the two-year-old child, R, was successfully removed. Following an erroneous paper renewal of the orders, HHJ Elly heard the parents’ challenge over two days and ordered that R should remain in foster care pending assessments and a final hearing expected several months later.

The mother appealed, supported by the father and the eldest child. She contended that the evidence did not establish reasonable grounds for believing that R faced the harm required by sections 38(2) and 31(2) of the Children Act 1989. She also argued that the judge had considered only the risks of return and had not balanced them against the harm caused by prolonged family separation.

1. Appeal allowed. The interim care order was set aside. Lord Justice Richards agreed with Lord Justice Thorpe’s judgment.

2. Section 38(2) of the Children Act 1989 required reasonable grounds for believing that the circumstances fell within the harm or risk-of-harm threshold in section 31(2). The very high standard required to justify the continuing removal of a child from home was not established by the guardian’s speculative evidence.

3. The concerns relied upon did not demonstrate a sufficient risk of short-term harm. The guardian had not witnessed the alleged household chaos and repeated an unidentified social worker’s concern which formed no part of the local authority’s case. Although domestic volatility presented an understandable long-term concern, there was no evidence that R had previously been caught in physical violence. A muted reaction observed during one contact visit was also too insecure a foundation for finding a real short-term risk.

4. The court had to undertake the balanced evaluation required by Re H (a child) (interim care order) [2003] 1 FCR 350. It was insufficient to consider only the risk associated with returning R. The judge also had to consider the emotional harm to R from continued separation from her parents, siblings and home. The likely duration of that separation was especially important for a two-year-old and could itself prejudice the prospect of reunification after the final hearing.

5. The existing placement did not provide a secure status quo because it had arisen in disputed circumstances. The short period already spent in foster care had to be weighed against the substantially longer separation which continuation of the order would produce. The local authority’s inability to remove three older children, about whom its concerns were more serious, further weakened the justification for keeping R apart from the family.

6. Fairness was also deficient because significant concerns were first advanced in the guardian’s oral evidence. Although the parents could cross-examine him, they had received no notice of those matters and had no proper opportunity to obtain rebuttal evidence.

1. Court of Appeal (Civil Division): The mother’s appeal was allowed and the interim care order was set aside. The court held that the evidence did not satisfy the required standard and that the lower court had failed adequately to balance the harm of return against the harm of prolonged separation.

2. Reading County Court: Following transfer from the Family Proceedings Court, HHJ Elly heard the parents’ challenge and continued the interim care arrangement under which R remained in foster care.

3. Family Proceedings Court: Interim care orders were made in the parents’ absence for the four youngest children. The local authority implemented the removal plan only in relation to R. The orders were later renewed on paper following an administrative error.