MG & Anor v A Local Authority & Ors

An interim care order removing children from a parent must be determined as an interim measure. The court must not treat it as a final resolution merely because proceedings have been prolonged or a final hearing is approaching.

Where removal is proposed, the court must ask whether the children’s physical or psychological safety requires it and whether removal is proportionate to the risks of leaving them in the parent’s care. It must also weigh the children’s wishes and the likely harm caused by abrupt removal. The parent’s capacity to resume care remains open for determination on full evidence at the final hearing.

Long-running care proceedings under Children Act 1989 concerned two brothers living with their mother. The father had been ruled out as a carer because of the emotional risk he posed. The proposed placement required a second local authority to become the designated authority.

A High Court judge sitting at Leicestershire County Court made interim care orders in favour of that authority and approved removal of the boys from their mother. The mother and the older child, separately represented from the children’s guardian, sought permission to appeal. They contended that the judge had treated an interim hearing as a final hearing and had thereby denied the mother a proper opportunity to challenge the revised care plan at a final hearing.

1. Permission to appeal was granted and the appeals were allowed. Although the judge’s orders were expressed as interim care orders, his reasoning showed that he had approached them as effectively final orders. He had consequently declined to apply the authorities concerning removal under interim care orders.

2. That approach was a material misdirection. The judge could not make interim orders while treating the issues as finally resolved, nor could he distinguish the applicable interim-order authorities merely because the case was unusual. Those errors vitiated the exercise of discretion and required the Court of Appeal to exercise the discretion afresh.

3. The court applied the proper interim-removal assessment. It asked whether the children’s safety, including their psychological safety, required removal and whether removal was proportionate to the risks of leaving them with their mother. It also weighed the older child’s strong wish to remain with his mother and the harm likely to follow an abrupt move.

4. On the current evidence, including the guardian’s concerns about the parents’ contact, the father’s conduct, the mother’s ability to maintain separation and her interim capacity to care, interim removal was justified. Interim care orders were made in favour of the second local authority. The boys were to live with their maternal aunt and uncle, while continuing at their existing schools.

5. The orders were strictly temporary. The mother was not to be treated as ruled out as a future carer, and the final hearing was to determine her capacity on full and appropriate evidence. Fresh injunctions restrained the father from unsupervised contact and from approaching the boys’ home. Judicial continuity justified listing the final hearing before Judge Jenkins. Disclosure of the police documents was refused, leaving that matter for the judge at or before the final hearing.

• Court of Appeal (Civil Division) — granted permission and allowed the mother’s and child’s appeals, substituting interim care orders and related protective injunctions: [2011] EWCA Civ 745.
• High Court judge sitting at Leicestershire County Court — on 26 April 2011 made interim care orders in favour of the second local authority and approved removal of the children from their mother’s care.