L (A Child), Re

A child may be removed under an interim care order only where the child’s safety requires immediate separation. Safety includes emotional and psychological welfare. Emotional harm is not inherently less serious than physical harm.

The statutory threshold for a direction under section 37 of the Children Act 1989 is low. The threshold for an interim care order under section 38(2) is higher, but remains below the final threshold in section 31(2). In an emergency, the court may use section 37 to make an immediate protective order notwithstanding the availability of another procedural route. It may initially act without notice where advance disclosure itself creates a real risk of harm, provided that a proper inter partes hearing follows promptly.

A nine-year-old child had lived with her maternal grandmother and step-grandfather for nearly all her life under a special guardianship order. Extended proceedings concerning contact, education and the grandparents’ resistance to professional involvement led the Family Division to make the child a ward of court.

After a social worker reported an escalation in the grandmother’s behaviour and a risk of emotional harm, Parker J used section 37 of the Children Act 1989 at a short hearing without notice to make a holding interim care order. An inter partes hearing followed immediately. The judge then continued the order for eight weeks, sanctioning the child’s immediate placement in foster care.

The grandparents appealed against the removal and challenged the use of section 37, the without-notice procedure, the fairness of the hearing and the duration of the order.

1. The appeal was dismissed unanimously. The judge was entitled to find that a care or supervision order might be appropriate under section 37(1) of the Children Act 1989 and that there were reasonable grounds under section 38(2) for believing the section 31(2) threshold circumstances existed. Those are interim thresholds. The section 37(1) threshold is low, while section 38(2) imposes a higher threshold that remains below the final section 31(2) standard.

2. Immediate separation is permissible only where the child’s safety requires immediate protection: Re LA (Care: Chronic Neglect) [2009] EWCA Civ 822. Safety bears a broad meaning and includes psychological welfare: Re B (Care Proceedings: Interim Care Order) [2009] EWCA Civ 1254. Emotional harm is not necessarily less serious than physical harm. The judge could find that exposure to the grandmother’s reaction and uncontrolled behaviour created an acute and immediate risk of emotional damage. The child’s emotional and psychological safety therefore justified immediate removal.

3. The local authority’s section 7 report had already supplied the investigation and conclusion contemplated by section 37(2)(a). Nevertheless, neither the Children Act 1989 nor the applicable procedural rules excluded the route adopted. The existence of alternative procedures, including applications for an emergency protection order or interim care order, did not render section 37 impermissible. Given the emergency and the existing wardship proceedings, Parker J was justified in using section 37 to secure immediate protection.

4. A judge may make a holding protective order without notice where the circumstances justify it, pending prompt consideration with all interested parties present. The initial order did no more than preserve the child’s safety until the inter partes hearing, which began immediately. The judge gave the grandmother extensive opportunity to oppose continuation, offered a further hearing on the next day or next working day, and listed a review one week later. There was no unfair reversal of the burden of proof.

5. The eight-week duration was not erroneous. At the review hearing the governing question would remain whether the child’s welfare required the interim order to continue. The order neither determined the final care proceedings nor endorsed permanent separation.

1. Court of Appeal (Civil Division): The grandparents’ appeal was dismissed unanimously. The immediate removal, the use of section 37 of the Children Act 1989, the without-notice holding order and the subsequent eight-week interim care order were upheld: [2013] EWCA Civ 179.

2. Family Division of the High Court: Parker J made a short holding interim care order without notice on 14 December 2012. After an inter partes hearing commencing immediately, she continued the interim care order for eight weeks and fixed a review hearing for 21 December 2012.