OC & OE (Children)

In Convention proceedings, a return order and an interim care order are distinct. Securing jurisdiction and prompt return does not create a presumption that children should be separated from their parent. The court should generally restore the status quo ante, with children returning to parental care pending welfare investigations, unless considered evidence establishes the statutory threshold for an interim care order. An interim care order made precipitately, without considered findings that the section 31 threshold is crossed, is liable to be set aside. A location order and ancillary passport directions may address the risk of further flight.

The local authority investigated concerns about four children. The older two were already in local authority accommodation. The younger two were in their mother’s care in England, but she took them to Ireland after learning that public law proceedings were contemplated. The local authority sought interim care orders and a summary return order under the European Convention. On 19 December 2012, HHJ Taylor made interim care orders in respect of all four children, and the younger children were returned. The mother appealed the orders concerning OC and OE. The central issue was whether the return order justified separating the younger children from their mother pending welfare investigations, and whether the threshold for an interim care order had been considered and established.

Lord Justice Thorpe delivered the leading judgment. Lord Justice Moses agreed, and Lord Justice McFarlane agreed while clarifying that the appeal concerned only OC and OE. The decision was unanimous.

1. The appeal was allowed and the interim care orders relating to OC and OE were set aside. The interim care orders for the older children, C and A, continued by agreement through fresh orders lasting 28 days.
2. The judge had put the return order before the interim care order. The circumstances of the mother’s flight amply justified a return order, but that did not entitle the local authority automatically to an interim care order. The two orders required separate consideration.
3. The proper operation of the Convention required the children to be returned as far as possible to the status quo ante. There was no presumption that a return order entailed an interim care order. The assumption should have been that the children returned to their mother’s care pending further welfare investigations.
4. The interim care orders were precipitate. They imposed the draconian consequence of separating mother and children, yet there were no necessary considered findings that the section 31 threshold had been crossed. The evidence that the children were safe and well in the care of their maternal grandmother reinforced that conclusion.
5. A location order requiring the children to reside at the mother’s address, together with ancillary passport and related orders, provided an appropriate safeguard against further flight.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 162, the appeal was allowed and the interim care orders concerning OC and OE were set aside.
2. Middlesbrough County Court: On 19 December 2012, HHJ Taylor made interim care orders concerning all four children.