KB (A Child) v Borough Council & Ors

An interim care order requires reasonable grounds for believing that the statutory threshold is satisfied. Removal must also be necessary for the child’s welfare and proportionate to the identified risk. Interim separation is justified only where the child’s safety requires immediate protection. Safety includes psychological welfare.

The court must assess the available evidence without making final findings. It must give proper weight to serious allegations and explain its balancing exercise, particularly when departing from the children’s guardian. A failure to do so may permit an appellate court to exercise the discretion afresh.

The guardian of a two-year-old child and the local authority sought permission to appeal against the Reading County Court’s refusal to make an interim care order under section 38 of the Children Act 1989. The judge instead made an interim supervision order. The child’s six-year-old half-brother remained subject to an undisputed interim care order.

Evidence from a social worker, the police and an adult half-sibling alleged grave mistreatment of the older child and marked differentiation between the siblings. Although the judge found the interim statutory threshold satisfied for both children, he ordered the younger child’s return to her parents under supervision.

The central issues were whether the judge had properly assessed the risk, conducted the welfare and proportionality balance, and explained his departure from the guardian’s recommendation.

1. The applications for permission were granted and both appeals were allowed. An interim care order was made in favour of the local authority. Wall LJ gave the judgment, with which Thorpe LJ agreed.

2. The judge correctly directed himself that the local authority had to establish reasonable grounds for believing that the circumstances specified in section 31(2) of the Children Act 1989 existed. He also correctly identified the question whether continuing removal was proportionate to the risk of harm. He nevertheless failed to apply those principles properly to the evidence.

3. An interim hearing does not require proof of disputed allegations on the balance of probabilities or comprehensive findings of fact. The court must review the available evidence and decide whether it supplies reasonable grounds for the threshold belief. If it does, the court must determine whether the child’s welfare requires an interim care order.

4. The evidence disclosed an exceptionally worrying situation. The judge materially understated the alleged treatment of the older child, failed to give sufficient weight to the resulting risk to the younger child, and wrongly concluded that evidence of possible harm from preferential treatment was unavailable. His description of the authority’s reassessment as a volte-face was also wrong.

5. The balancing exercise was flawed and inadequately reasoned. In particular, the judge did not explain how an interim supervision order would operate or protect the child, and gave no cogent reason for departing from the guardian’s recommendation. Those errors vitiated the exercise of discretion. Since no oral evidence had been heard, the Court of Appeal was as well placed as the judge to exercise the discretion afresh, applying G v G [1985] 1 WLR 645.

6. Applying Re L-A [2009] EWCA Civ 822, interim separation is not sanctioned unless the child’s safety requires immediate protection. The standard is high, but it is not displaced by a separate formula requiring an imminent risk of really serious harm. Safety extends to psychological welfare. On the evidence, the child’s welfare and safety required continued interim protection in the same foster placement as her half-brother.

7. The order determined only interim protection. It expressed no view about the outcome to be reached on all the evidence at the final hearing.

1. Court of Appeal (Civil Division): Permission to appeal was granted, both appeals were allowed, and an interim care order was made in favour of the local authority: [2009] EWCA Civ 1254.
2. Reading County Court: His Honour Judge Donald Hamilton dismissed the application for an interim care order concerning the child and made an interim supervision order. He subsequently made a temporary order under section 40(1) of the Children Act 1989 to permit an application for permission to appeal.