F (Children), Re

On an interim care order application, the court must address only issues that cannot await the final hearing. It must not determine the merits of issues being prepared for trial. Separation requires the child’s safety to demand immediate separation, and a generalised risk of emotional harm will not suffice where practical day-to-day care is not in issue and a final hearing is imminent. A history of adverse findings concerning another child cannot itself determine the interim outcome. The court must also consider proportionality and litigation fairness. Expert evidence may be required where parents need independent assistance to identify therapeutic needs and available services. The appeal was allowed, the interim care order set aside, and an independent social worker permitted.

The parents appealed from Her Honour Judge Butler QC’s decision in the Nottingham County Court on 14 May 2010. The judge had reheard the local authority’s application for interim care orders and the parents’ application for leave to instruct an independent social worker, after an earlier District Judge refused the care application and granted permission to instruct the expert. The rehearing proceeded on the same oral evidence because no approved note of the earlier judgment was available. The central issues were whether the interim hearing had prematurely determined matters for the final hearing, whether immediate separation was required, and whether independent expert evidence was necessary for a fair determination of the parents’ case.

Appeal allowed. The Court of Appeal set aside the interim care order and granted the parents’ application for leave to instruct an independent social worker.

1. Scope of an interim hearing. Thorpe LJ held that an application for an interim care order must be confined to issues that cannot await the final hearing. The court must not decide matters being prepared for determination at trial. The judge had treated the history of proceedings concerning another child, and the evidence about therapeutic work, as effectively determining the parents’ fitness to care for the twins.
2. Immediate separation. Separation was justified only if the children’s safety demanded immediate separation. The parents were accepted to be capable of providing good enough day-to-day care. The identified risk of emotional harm, in circumstances where a final hearing was to take place in the autumn, did not satisfy the high threshold. The parents’ alleged antagonism was not the primary basis of the decision and did not alter that conclusion.
3. Proportionality. Wall P, agreeing with the other judgments, added that removal had to be proportionate to the risk of harm if the children were returned to parental care. He considered that the same result followed under the approach in Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575 and the test discussed in the earlier Re B decision, identified by the citation [2009] EWCA Civ 1254.
4. Expert evidence and fairness. Thorpe LJ held that refusal of the expert was premature. The local authority had not yet fully declared its case, while the proposed expert could assess the parents’ therapeutic needs, available local services, and the timescale for benefit. Those matters could be relevant to litigation fairness and to the preparation of an effective case for trial.
5. Additional observations. Hedley J confirmed that the decision did not establish that an interim order could never have an effect equivalent to final disposal where the outcome was obvious from the outset. He also observed that case-management pressure following the 2002 Act must not prevent proper consideration of permanency options, and that fairness to parents remains relevant at every stage, although the child’s welfare is paramount once the threshold is crossed.

• Court of Appeal (Civil Division) — Appeal allowed on 15 June 2010. The interim care order was set aside and the parents’ application to instruct an independent social worker was granted.
• Nottingham County Court — Her Honour Judge Butler QC reheard the matter and, on 14 May 2010, made interim care orders and refused the parents’ application for expert evidence.
• Nottingham County Court — District Judge Oliver had previously refused the interim care order application and granted the parents leave to instruct an independent social worker.