B (Children)

Applications for interim care orders require a two-stage analysis. The court must first decide whether the threshold in section 38(2) of the Children Act 1989 is satisfied. It must then determine, applying the child’s paramount welfare and the statutory welfare checklist, whether removal is necessary and proportionate. The welfare evaluation must address the strength of the evidence, the likelihood and predictability of further harm, its seriousness if it occurs, the harm caused by separation, and any protective features. A judge who decides that children may safely return to their parents must explain clearly why the identified risk can be taken. A conclusion expressed only as a general balance between physical harm and separation harm is insufficient.

The local authority brought care proceedings after one of twin boys sustained separate femoral and elbow fractures while living with his parents. Medical evidence raised a significant possibility of non-accidental injury, although the evidence had not been tested and further expert reports were awaited.

The first-instance judge accepted that the threshold for interim intervention was met, but refused interim care orders and made interim supervision orders instead, permitting the children to return home. The local authority appealed, arguing that the judge had failed properly to assess the risk of further injury and to explain why return was safe and proportionate. The central issue was whether the welfare evaluation was legally adequate.

Appeal allowed. The interim supervision orders were set aside. Lady Justice Black gave the leading judgment; Lord Justice Etherton and Lord Justice Moore-Bick agreed.

1. Two-stage process. The court must first determine whether Children Act 1989, section 38(2), is satisfied by reasonable grounds for believing that the circumstances are those identified in section 31(2). If so, the court must make the welfare decision. At that stage, welfare is paramount, the welfare checklist in section 1(3) must be considered, and regard must be had to delay and the no-order principle under sections 1(2) and 1(5).
2. Risk evaluation. Removal from parental care must be necessary and proportionate. The assessment must include the strength of the local authority’s case, the frequency or likely frequency and predictability of further harm, and the seriousness of harm if the risk materialises. The court must also assess the possible harm from separation, the actual circumstances in foster care, and any protective features in the home.
3. Reasons required. A judge is not required to make final findings of fact at an interim hearing. However, where the evidence gives grounds for believing that a parent may have caused serious injuries, the judge must explain what the risk is, how likely or predictable the harm is, and why that risk can nevertheless be taken. A bare conclusion that the risk of physical harm is outweighed by the risk to the children’s relationship with their parents does not provide an adequate analysis.
4. Appellate review. The appellate court must not substitute its own decision for that of the trial judge. It must consider whether the proper approach was applied, whether the decision was plainly wrong, or whether the reasons were insufficient. Here, the first-instance judge’s failure to articulate the competing risks was a fundamental flaw. The matter required further submissions as to the appropriate next steps.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 1933, unanimously allowed the local authority’s appeal and set aside the interim supervision orders.
• Canterbury County Court: On 8 November 2012, HHJ Murdoch refused interim care orders and made interim supervision orders, allowing the children to return to their parents.