W (A Child), Re

An interim care order separating a newborn child from a parent requires evidence of a very high level of immediate risk to the child’s safety. The potential harm to the development of maternal attachment is a serious consideration and may have long-term consequences. It does not, however, displace the central question: whether immediate separation is necessary for the child’s safety.

At an interim hearing, the court may assess risk cumulatively and may order removal where the evidence supports that conclusion, even though allegations remain unproved and the separation may be temporary. The appellate court will not intervene merely because the judge did not elaborate further on the gravity of separation where the judge applied the correct safety test and was entitled to assess the risk as requiring removal.

The mother sought permission to appeal an interim care order made by HHJ Parry in Swansea County Court on 19 February 2010, two days after the child’s birth. The order placed the child in the local authority’s interim care for eight weeks, with short-term foster care and supervised contact with the mother.

The threshold for an interim order under sections 38(2) and 31(2) of the Children Act 1989 was conceded. The dispute concerned the appropriate interim outcome. The mother proposed either intensive supervision at home or a mother-and-baby foster placement. She argued that separation at birth would seriously impair maternal attachment. The central issue was whether the evidence demonstrated a need for immediate separation on grounds of the child’s safety.

1. Permission to appeal was refused. Lord Justice Wilson, with whom Lord Justice Rix agreed, held that the judge had applied the correct test. The question was whether the evidence disclosed a need for immediate separation for the child’s safety. Immediate risk to safety was the key consideration, consistently with L-A (Children) [2009] EWCA Civ 822.
2. The court accepted that removal of a newborn from her mother was a drastic step. It could significantly affect the development of their relationship and might have longer-term consequences. The short-term character of the order did not itself answer that concern.
3. Nevertheless, the attachment issue did not determine the application. At the interim stage, no allegations had been established. The judge was required to assess immediate risk and needed to find a very high level of it before ordering removal.
4. The judge had been entitled to reject both proposed alternatives. The evidence concerning poor hygiene and the mother’s vulnerability to postnatal depression supported rejection of care at home under supervision. In considering a mother-and-baby foster placement, the judge was entitled to regard the earlier injury to another child, the alleged violence during depressive episodes, and the current pressures on the mother as supporting a risk which foster carers could not adequately contain.
5. Considered cumulatively, those matters entitled the judge to conclude that immediate removal was necessary, notwithstanding the absence of professional evidence then suggesting a contrary assessment. The judge’s limited discussion of the gravity of separation did not make the discretionary decision arguably flawed. The court also noted that the interim decision did not pre-empt a future application for an assessment direction under section 38(6) of the Children Act 1989.

• Court of Appeal (Civil Division) — The mother’s application for permission to appeal the interim care order was refused.
• Swansea County Court — HHJ Parry made an interim care order on 19 February 2010 placing the newborn child in the local authority’s care for eight weeks, with short-term foster care and supervised maternal contact.