S (A Child)

An interim care order requiring a child’s immediate removal from current carers should be made only where the child’s safety demands separation. The court must identify an evidentially supported risk of immediate harm and balance that risk against positive evidence of care. An unquantified or unsupported possibility does not justify removal. The analysis must remain proportionate. Administrative or fostering arrangements do not themselves establish a welfare need for separation. On appeal, the court may interfere where the risk assessment was not open on the evidence and was plainly wrong. Where removal is unnecessary, residence and supervision orders may provide the appropriate interim framework.

Care proceedings concerned A, a baby living with her maternal grandmother under an interim care order while her mother recovered from serious mental illness. The local authority sought A’s removal after the grandmother described the mother’s earlier mental-health episode in terms suggesting demonic possession, and after the fostering panel deferred approval pending psychiatric assessment. The Recorder made an interim care order and directed immediate removal, finding an imminent and serious risk. The mother appealed, supported by the father, grandmother and children’s guardian. The central issue was whether psychiatric assessment had to be undertaken with A removed, or whether the evidence justified immediate separation.

Appeal allowed. The Recorder’s legal approach was not challenged. The applicable test was whether A’s safety demanded immediate separation from her current carers, with removal proportionate to the risks of leaving her in their care [17].

1. The Recorder’s central risk analysis was unsustainable. The evidence did not support the conclusion that A herself might behave in a way that led the grandmother to believe that she was possessed, or that the grandmother might physically harm her in response. The grandmother had cared for A positively for about seven months, and there had been no comparable incident when the mother’s mental health deteriorated shortly before A’s birth [28]-[30].
2. In assessing danger, the court had to balance the identified risk against the positive evidence about the care A had received. A real possibility could not justify immediate removal where the feared harm was unsupported by evidence and based on speculation about future events [30]-[31].
3. The appellate court was entitled to interfere because the Recorder’s characterisation of the evidence and resulting conclusion were not open to him and were plainly wrong [28]. The subsequent period during which A remained safely with the grandmother, together with the provisional psychiatric evidence, reinforced that conclusion [32]-[34].
4. There was no pressing need for A’s removal. Although the fostering regulations prevented an interim care order operating with the grandmother as an unapproved foster carer, that administrative difficulty did not require separation. The interim care order was discharged and replaced by an interim residence order in favour of the grandmother, coupled with an interim supervision order requiring the local authority to monitor and support the placement [35], [41].

1. Court of Appeal (Civil Division): allowed the appeal, discharged the interim care order, and substituted an interim residence order to the grandmother with interim supervision by the local authority. [2012] EWCA Civ 1915
2. Watford County Court: Mr Recorder Farooq Ahmed made an interim care order and directed that the child be immediately removed from the grandmother’s home.