A-H (Children)

Separation of children from a parent during care proceedings is justified only where the children’s safety demands it. On an appeal against an interim care order, the appellate court must apply a high threshold: it is insufficient to show that another welfare assessment was possible. The appellant must establish that the judge was plainly wrong or that the order was otherwise unjustified by the evidence. A parent’s subsequent cooperation and compliance with protective arrangements are important factors, but they do not necessarily remove the risks identified by the judge. Welfare decisions that are finely balanced are especially difficult to overturn on appeal because they fall within the trial judge’s evaluative discretion.

The mother appealed against an interim care order made by Her Honour Judge Marshall in the Southampton sitting of Southampton County Court on 9 June 2011. The order removed two of her three children from her care and placed them in foster care during ongoing care proceedings arising from allegations of sexual abuse involving the father of the youngest child.

The mother accepted that immediate removal might have been justified when the allegations first arose, but relied on her positive cooperation with the local authority and compliance with arrangements preventing unsupervised contact between the children and the father. The central issue was whether the judge had been entitled to conclude that removal remained necessary for the children’s safety.

1. Appeal dismissed. The mother failed to show that the interim care order was plainly wrong or otherwise unjustified by the evidence.
2. The governing principle, summarised in Re LA [2009] EWCA Civ 822; [2010] 1 FLR 80, was that separation of children and parents should be ordered only where the child’s safety demanded separation. The court applied that principle to the assessment of the interim risks.
3. The judge was entitled to evaluate the evidence in the round. The positive evidence of the mother’s cooperation and compliance with the protective arrangements reduced the force of the case for removal to some degree, but did not eliminate the concerns. Those concerns included possible sexual risk, physical risk arising from an alleged injury, and emotional risk caused by the mother’s inability to reach a clear view about the allegations and the identity of the alleged perpetrator.
4. The judge was also entitled to attach weight to the guardian’s assessment, notwithstanding that the duty guardian had expressed his view without interviewing the parents or children. The later guardian’s assessment, made after fuller consideration and subsequently maintained after meeting the family, supported the same conclusion.
5. The decision was a finely balanced welfare judgment within the judge’s discretion. Such a decision is correspondingly less amenable to appellate intervention. The court therefore concluded that the children’s safety did demand their removal at that stage.

Lord Justice Mummery and Lord Justice Rimer agreed with Mr Justice McFarlane. Order: appeal dismissed.

• Court of Appeal (Civil Division): dismissed the mother’s appeal against the interim care order made on 9 June 2011.
• Southampton County Court: Her Honour Judge Marshall made an interim care order placing the two younger children in foster care.