D-S (Children)

Where the threshold under Children Act 1989, section 38(2) is met, a very young child should be separated from the mother only where separation is necessary and proportionate to the child's welfare. The court must scrutinise the relevant enquiries, factors and realistic alternatives. A real risk may be considered even if the feared harm may become acute only in the future. The judge is not required to search for or select a residential placement. An interim care order preserves the position pending final hearing and does not determine the eventual outcome. The order must be legitimate under Article 8(2).

The mother sought permission to appeal against an interim care order made by HHJ Orrell in the Derby County Court on 1 October 2008. The order separated her from V, a very young child, following a prolonged residential assessment and a psychiatric report concluding that her parenting was unsafe and that further assessment would cause harmful delay.

The mother argued that the judge should have found another residential placement and that the identified risk was only future. The local authority opposed the application. The central issue was whether, with the threshold under the Children Act 1989, section 38(2) met, an interim care order was necessary and proportionate under Article 8, or whether a realistic alternative existed.

The Court of Appeal refused permission to appeal and dismissed the appeal.

1. Threshold and necessity. The court proceeded on the mother's concession that the threshold criteria under section 38(2) of the Children Act 1989 were met. In the circumstances, the psychiatric evidence, the child's welfare and need for stability, and the absence of any realistic alternative enabled the judge to conclude that an interim care order was necessary and proportionate.
2. Role of the judge. It was not the court's function to search for a placement, select one, or require the parties to use a place chosen by the judge. Identifying possible placements was a matter for the parties, including the local authority and the mother.
3. Risk. The risk was not merely speculative because some harm might arise in the future. It was a real risk which the judge was entitled to take into account as an immediate justification for interim protection.
4. Separation and family life. The general rule is that a young child should not be separated from the mother unless it is absolutely necessary. The court relied on the principles referred to in Re: H (a child) [2008] LTL 25/9/2008 Extempore and Re: L (a child) (Care Threshold Criteria) [2007] 1 FLR 1050, including that the court or state need not spare every child the consequences of defective parenting. Applied to the particular facts, the order was proportionate to the child's needs and legitimate under Article 8(2).
5. Interim nature of the order. The psychiatrist's views were not determinative of the final outcome. The interim order preserved the position until a full hearing and did not decide the case permanently. The mother retained generous contact, stated to be 12 hours each week, and could seek to demonstrate her ability to care for V before the final hearing.
6. Process. Arden LJ stressed that the court should scrutinise the process leading to an interim care plan to ensure that relevant enquiries had been made and relevant factors considered. She agreed that there was no realistic alternative. Sir Mark Potter agreed with the judgment. The order was: application refused.

1. Court of Appeal (Civil Division): On 22 October 2008, refused permission to appeal and dismissed the appeal.
2. Derby County Court: HHJ Orrell made an interim care order on 1 October 2008. The judgment also records that, on 29 April 2008, he had allowed an earlier appeal and directed a residential assessment.