L-A (Children), Re

On an interim care order application, the court must confine its decision to issues that cannot await the final hearing. It must not pre-judge issues reserved for that hearing. Removal of a child from a parent should be ordered only where the child’s safety requires immediate interim protection.

A first-instance judgment which summarises those principles does not create a separate or heightened legal threshold. In particular, an imminent risk of really serious harm is not an additional test that prevents the court from making the welfare decision required by the established appellate authorities.

The local authority began care proceedings concerning four young children on grounds of chronic neglect. Following further concerns about conditions in the home, it sought their removal into foster care pending a final hearing. The final hearing had been postponed, creating the prospect of a lengthy interim period.

HHJ Cleary, sitting in the Coventry County Court, refused removal. He instead contemplated the children remaining at home under an interim care order with added protection. The local authority, supported by the children’s guardian, appealed on the ground that the judge had applied an erroneously heightened legal test for interim removal.

1. Appeal allowed. Thorpe LJ, with whom Maurice Kay LJ agreed, held that the judge had misdirected himself in law. The issue was remitted for retrial.
2. On an interim care order application, the decision must be confined to matters which cannot await the final hearing. It must not determine issues that are being prepared for final resolution. Separation from a parent is justified only where the child’s safety demands immediate separation or interim protection.
3. The relevant framework included the welfare principles in the Children Act 1989. The statutory threshold under sections 31 and 38 had been conceded. The appeal concerned the legal approach to removal pending the final hearing.
4. Re H [2001] 1 FCR 350, Re N, and Re K and H [2007] 1 FLR 2043 established the applicable appellate principles. The phrase used by Ryder J in Re L [2008] 1 FLR 575 was a summary of those authorities, not a new standard.
5. HHJ Cleary had wrongly treated that phrase as binding authority which raised the bar for removal and prevented him from making the welfare decision he considered necessary. In light of subsequent developments and the need to consider an appropriate placement, the Court of Appeal remitted the interim issues for a fresh hearing on or shortly before 3 August 2009.

• Court of Appeal (Civil Division) — allowed the local authority’s appeal and remitted the interim care order issues for retrial: [2009] EWCA Civ 822.
• Coventry County Court — HHJ Cleary refused the local authority’s application for the children’s swift removal from their mother’s home pending the final hearing.