L (A Child)

An interim care hearing must address the child’s safety and welfare before the final hearing. Separation requires immediate protection and must be proportionate to the risk, with safety encompassing psychological welfare.

The interim process must not usurp the final hearing, give the local authority a tactical advantage, or prejudice a parent’s ability to offer care. A provisional view of the final outcome may inform case management, but longer-term uncertainty or delay is not itself an immediate emotional danger. Where prompt determination is needed, the court should ordinarily expedite the final hearing.

A mother appealed against an interim care order made by Swindon County Court. The order kept her infant son in foster care rather than allowing him to join her in a prison mother and baby unit. The mother could care for the child safely in that protected setting, but the local authority and guardian relied on her history, the uncertain long-term prognosis, delay and the risk of repeated placement changes.

The central issue was how an interim care application should be approached where the child’s immediate safety with the parent was not in question, but other considerations were said to favour continued separation. A separate local authority appeal concerning the legality of the child’s original removal was adjourned.

1. Appeal allowed unanimously. The interim care order was replaced by an interim supervision order, enabling the child to live immediately with his mother in the prison mother and baby unit.

2. Interim separation is justified only where the child’s safety requires immediate protection. Safety includes psychological welfare, and continued separation must be proportionate to the risk of harm. These formulations are complementary rather than competing tests. The same approach applies whether the court is considering initial removal or declining to return a child who is already living away from the parent.

3. The paramount consideration under section 1 of the Children Act 1989 is the child’s welfare. The court must examine the child’s actual circumstances, including an existing attachment to foster carers and the possible effects of a move. It should not disregard the existing placement merely because the legality of the original removal is disputed.

4. An interim hearing exists to keep the child safe until the full care application can be determined. It must not usurp the final hearing, confer an adventitious advantage on the local authority, or prejudice the parent’s opportunity to present a proposal for care. The lesser interim threshold under section 38(2), together with the frequently incomplete evidence, reinforces those limits.

5. The court may form a provisional view of the longer-term position where necessary for case management. It must not use that view to determine the care proceedings prematurely. Concern about delay should ordinarily be met by listing an early final hearing, rather than by making an interim order that effectively foreshadows the final result.

6. There was no physical or emotional danger to the child in the prison unit. Longer-term uncertainty, possible delay after the mother’s release, and the prospect of later placement changes did not amount to the immediate emotional danger contemplated by the interim-care authorities. Although disruption of the foster placement was relevant, preserving the mother-child relationship pending prompt final adjudication carried decisive weight.

• Court of Appeal (Civil Division): By [2013] EWCA Civ 489, unanimously allowed the mother’s appeal and substituted an interim supervision order for the interim care order. The local authority’s separate appeal concerning the child’s original removal was adjourned.
• Swindon County Court: District Judge Ralton made an interim care order on 11 February 2013, under which the child remained in foster care rather than joining the mother in the prison mother and baby unit.