B (Children)

At an interim care-order hearing, the threshold question is whether there are reasonable grounds for thinking that the conditions in section 31(2) will be satisfied. Proof of the threshold is unnecessary. If that question is met, the court must separately decide whether the proposed interim order, including immediate removal, is required by the child’s welfare. An interim hearing is not a substitute for a final trial and should address only issues that cannot wait. Separation is justified only where the child’s welfare and safety, including protection against emotional harm, demand it. Meeting the interim threshold does not itself require removal, and directions to a final hearing remain appropriate because the evidence and ultimate findings may change.

The local authority commenced care proceedings concerning D, aged eight, and C, aged seven months. Their mothers, S and L, are respectively D’s and C’s mothers and lived together in the same household. Following a two-day hearing, Mr Recorder Digney declined to make interim care orders on a plan for immediate removal, although he directed the proceedings towards a final hearing. The local authority, supported by the children’s guardian, appealed. The central issues were whether there were reasonable grounds for believing that the statutory threshold was satisfied for each child and, separately, whether immediate removal was required before the final hearing.

Appeal dismissed. The Recorder was wrong to conclude that the interim threshold test was not met in relation to D, but he was right to refuse interim care orders on the proposed plans for immediate removal.

1. Separate questions at the interim stage. Under section 38(2) of the Children Act, the first question is whether there are reasonable grounds for thinking that the threshold conditions in section 31(2) will be satisfied. The court need not determine or prove that the threshold conditions are in fact satisfied. This approach was set out in Re: GR (Children) & Ors [2010] EWCA Civ 871.
2. Application of the threshold test. In D’s case, the combination of neglect, lack of stimulation and sexual risk amply provided reasonable grounds for believing that the threshold would be met. The evidence concerning C was less clear, and it was unnecessary to decide whether the test was independently satisfied for her.
3. Removal and welfare. The second question is whether an interim care order is called for, having regard to the use proposed for it. Where immediate removal is sought, the child’s welfare is paramount. The principles governing the final hearing, including the need for significant harm and the requirement that separation be necessary for welfare, were described by Hedley J in Re: L (Care: Threshold Criteria) [2007] 1 FLR 2050, but the interim test is distinct.
4. Urgency and proportionality. An interim hearing is not a substitute for the final trial and should be confined to issues that cannot wait. Separation is justified only where the child’s welfare and safety, including any risk of emotional harm, demand it. The short-term neglect risk was insufficient, and the sexual risk was not immediate. Existing agreements and an injunction provided interim safeguards, subject to reconsideration if they were breached.
5. Final proceedings. The two questions had to be considered separately for each child. Refusing interim orders did not preclude a final care-order application, and directions for a final hearing were not inconsistent with the interim decision because the evidence might change.

• Court of Appeal (Civil Division) — On 16 August 2012, the appeal was dismissed. The Recorder’s threshold conclusion was corrected in relation to D, but the refusal of immediate removal was upheld: [2012] EWCA Civ 1275.
• Medway County Court — Mr Recorder Digney declined to make interim care orders on 3 and 4 July 2012, while directing the proceedings towards a final hearing.