K & H (children), Re

At the interim stage of care proceedings, children should not be removed from parental care unless their safety requires immediate protection. The threshold test concerning reasonable grounds for believing that significant harm is likely does not, without more, determine whether interim removal is necessary.

A discretionary decision founded on the wrong legal test cannot stand. The court must also give proper consideration to the children’s wishes and feelings, including whether separate legal representation is needed where their position differs from that advanced by their guardian.

Hertfordshire County Council commenced care proceedings concerning two boys who were living with their father. Despite an earlier favourable assessment, the authority sought their immediate removal after receiving information about alleged drug and other criminal activity. The guardian supported removal.

His Honour Judge Serota QC made an interim care order permitting removal after a pressurised hearing at Milton Keynes County Court. The father appealed, contending that the judge had applied the wrong legal test and had decided the application without hearing material evidence available on his behalf.

The central issue was whether interim removal could be justified by a real, rather than fanciful, possibility of significant harm, or whether the children’s safety had to require immediate protection.

1. Appeal allowed unanimously. The order below was replaced by an interim care order under which the children would remain with their father. Subject to an emergency, the local authority was not to remove them without notice and an application to the court. Appropriate assessment and case-management directions were also to be made.

2. Lord Justice Thorpe held that the judge had applied the wrong legal test. The decisions in H (A Child) (Interim Care Order) [2003] 1 FCR 350 and M (Interim Care Order: Removal) [2006] 1 FLR 1043 established that removal at an interim stage should not be sanctioned unless the child’s safety requires interim protection. Haase v Germany [2004] 2 FLR 39 adopted a similar approach.

3. The judge had instead asked whether there were reasonable grounds for believing that significant harm was likely, treating likelihood as a real rather than fanciful possibility. That test, drawn from Re H, addressed a different question. A discretionary decision resting on an incorrect legal test could not stand.

4. The proceedings had also been affected by serious procedural shortcomings. The hearing was conducted under substantial time pressure, the available evidence was incomplete, and witnesses capable of supporting the father’s position were not heard. The concerns about the father nevertheless had an evidential basis and required an early, full and fair determination supported by appropriate drug testing and professional assessments.

5. The court had to heed the children’s wishes and feelings. The older child’s need for separate legal representation required prompt determination because his position was not being advanced independently by the guardian’s representatives.

6. Lord Justice Wall agreed. He emphasised that the court was making no finding about the father’s alleged involvement with drugs. Rigorous case management, coherent presentation by the local authority, and the father’s full openness and co-operation were necessary to permit a reliable welfare determination.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1898, unanimously allowed the father’s appeal and replaced the order below with an interim care order leaving the children in his care, subject to safeguards and further directions.

2. Milton Keynes County Court: His Honour Judge Serota QC made an interim care order permitting the local authority to remove the children. He refused permission to appeal but granted a stay.

3. Justices: The proceedings began before the justices, who continued an interim care order and later transferred the case to the County Court without making an order authorising removal.