W (A Child)

At the interim stage, removal of a child from a parent is justified only where the child’s safety requires immediate protection. Safety includes emotional and psychological welfare. Where the facts establish a serious risk of further significant harm, the court must consider whether any less intrusive order would provide effective protection. If no other realistic and reasonably available option exists, immediate removal may be proportionate. Where there is a choice between realistic options, the court should analyse each by reference to the welfare checklist and conduct a proportionality balance, addressing the benefits and detriments of each option.

The mother appealed against an interim care order made in private law proceedings under the Children Act 1989. The order approved the immediate removal of her eight-year-old daughter from her care after a fact-finding hearing in which the judge rejected the mother’s allegations against the father and found that she had involved the child in false allegations and caused significant emotional harm.

The mother argued that removal was procedurally unfair, disproportionate, and unnecessary, and that alternatives had not been properly considered. The local authority, father and child’s guardian opposed the appeal. The central issues were whether the mother had adequate notice and opportunity to address removal, and whether the judge had applied the correct test and chosen a proportionate protective measure.

1. The appeal was dismissed. There had been no procedural irregularity or unfairness. The judge had repeatedly warned the parties that, if the allegations were found to be false, he might make an interim care order and approve removal. The mother had several months to consider the issue, was directed to address possible orders, received the other parties’ submissions, and made further oral submissions, including proposals for placement with relatives.
2. The applicable interim-removal test, stated in Re LA (Care: Chronic Neglect) [2010] 1 FLR 80, was that separation should occur only where the child’s safety required immediate separation or interim protection. Safety has a broad meaning and includes emotional and psychological welfare, as illustrated by Re B (Care Proceedings: Interim Care Order) [2010] 1 FLR 1211.
3. The factual findings established a serious risk of further significant harm. The mother had encouraged false allegations, involved the child in adult sexual matters, and undermined the child’s relationship with the father. Conduct at that level should generally be understood as serious child abuse requiring court intervention. The interim threshold and jurisdiction under sections 37 and 38 of the Children Act 1989 were engaged, and the test for removal was satisfied.
4. The court considered proportionality. The mother’s otherwise good care did not answer the identified risk. The proposed alternatives would have left the child in her care without effective protection. A move directly to the father was not immediately possible, and relatives required assessment. Short-term neutral foster care was therefore the only realistic option, while assessments and therapeutic assistance were pursued.
5. Article 8 of the ECHR requires welfare analysis and proportionality evaluation whenever removal into public care is contemplated. Where more than one realistic option is reasonably available, the judge should use a conventional balance-sheet approach, evaluating each option against the welfare checklist and weighing its benefits and detriments. Where, as here, no other realistic option exists, no further comparative analysis is required. The care proceedings were to continue, enabling assessment of longer-term welfare options.

• Court of Appeal (Civil Division): Appeal against the interim care order dismissed. The court upheld the judge’s conclusion that removal was procedurally fair and proportionate.
• High Court of Justice, Family Division, Birmingham District Registry: His Honour Judge Cardinal, sitting as a judge of the High Court, made an interim care order under section 38(1) of the Children Act 1989, approving the child’s immediate removal from the mother’s care.