B (Children), Re (Rev 1)

Once the reasonable-grounds threshold for an interim care order is met, the court must decide the child’s welfare. Continued removal from parental care is justified only where it is proportionate to the risk of harm on return.

An interim care order may therefore provide a safe period for assessment where that assessment cannot safely occur while the child lives with the parent. The order must remain genuinely interim. It must not pre-empt the final welfare decision merely because of its duration.

The mother appealed against interim care orders made by His Honour Judge Cleary in the Coventry County Court on 5 March 2010 in respect of her two younger children.

The threshold was conceded. The central issue was whether the children should return to the mother or remain temporarily in foster care while the local authority assessed whether she could live independently of, and protect them from, their father following serious domestic abuse.

The mother contended that the judge had applied the wrong test for removal under an interim care order and had reversed the burden of proof.

1. Appeal dismissed. Wall LJ, with whom Aikens and Thorpe LJJ agreed, held that the judge had been entitled to make interim care orders and to approve temporary foster placement.

2. After the reasonable-grounds threshold under section 38(2) of the Children Act 1989 has been met, the decision whether to make or continue an interim care order is a welfare decision. The local authority bears the burden on the threshold issue, but that does not create a further burden on the parent when the court assesses welfare.

3. The appropriate and generally applicable inquiry was whether continued removal from parental care was proportionate to the risk of harm if the children returned. The test approved in Re B (a child) (interim care order) [2009] EWCA Civ 1254 was satisfied. The judge had properly balanced the emotional harm of separation against the real risk arising from the mother’s inability, at that stage, safely to disengage from the father.

4. The judge had not used the interim order as a determination of the final case. He confined placement away from the mother to the assessment period and envisaged a review and phased return if the assessment permitted it. This avoided the danger identified in Re LA and Re H that an interim arrangement could become determinative through lasting until the final hearing.

5. In additional observations, Wall LJ emphasised that interim care orders remain temporary under section 38(4) and (5) of the Children Act 1989. A parent remains entitled to a hearing before expiry to oppose extension or seek the child’s return. The local authority should also record clearly in writing any conditions on which it considers return safe.

• Court of Appeal (Civil Division) — permission to appeal granted, but appeal dismissed: [2010] EWCA Civ 324.
• Coventry County Court — His Honour Judge Cleary made interim care orders for the two younger children on 5 March 2010.