NL (A Child), Re (Appeal: Interim Care Order: Facts And Reasons)

At an interim care stage, the court must decide only issues that cannot await the substantive hearing. Removal of a newborn from a parent requires a high threshold: the child’s safety must demand immediate separation. Where a specialist placement can protect the child, keeping parent and child together should ordinarily be the default, and a separation already made must not become self-perpetuating through status quo reasoning. Justice and fair assessment cannot be subordinated to the 26-week timetable. Pivotal expert evidence must be obtained through a fair and adequate process. The court must remain independent and must not adopt one party’s draft reasons wholesale. Appeals involving interim separation require urgent listing.

The mother appealed against an interim care order made by the Family Proceedings Court on 7 November 2013. Her infant son had been removed from her care and placed with foster carers, although she was living at a specialist family treatment service which offered intensive support and supervision.

The local authority relied on the mother’s history of substance misuse and a psychological report prepared shortly before the first hearing. The Justices concluded that the child faced immediate physical and emotional harm if returned to his mother. The appeal concerned the adequacy and fairness of the assessment process, the quality of the expert evidence, the preparation of the Justices’ Facts and Reasons, and the appropriateness of continuing separation pending final determination. The central issue was whether the child’s immediate safety required separation.

The appeal was allowed. The interim care order based on continued separation was set aside, and the child was to be returned to his mother within the protective specialist resource.

1. Interim removal. The court endorsed the established principles in Re LA (Care; Chronic Neglect) [2010] 1 FLR 80 and the high threshold reiterated in Re K and H [2007] 1 FLR 2043. An interim decision must be confined to issues that cannot await the substantive hearing. Separation is justified only where the child’s safety demands immediate separation or requires interim protection, and removal requires a very high standard.
2. Application to a newborn. The first consideration should have been to keep the mother and child together for the short period before the contested hearing. The specialist resource provided an abundantly safe environment. The fact that the child had already been moved to foster care could not properly be used as a status quo reason for continuing separation. The long-term history concerning the mother’s older children could not determine the interim decision without proper assessment of the present risks and protective arrangements.
3. Expert evidence and timetable. It was unacceptable to obtain pivotal evidence supporting removal through a paper assessment completed in a single working day, supplemented only by a limited telephone discussion with a professional who had never met the mother, and without contacting the specialist resource. The requirement to conclude public law cases within 26 weeks could not displace justice or the need for adequate evidence. The principle stated in Re B-S (Children) [2013] EWCA Civ 1146 was reaffirmed: where the evidence is inadequate, an adjournment may be necessary even if the timetable is exceeded.
4. Fairness and judicial independence. Article 6 of the European Convention on Human Rights requires a fair process. Material sent to the judge by one party must be copied simultaneously to all other parties. The court must independently evaluate the evidence and must not adopt wholesale a local authority’s draft findings and reasons. The approach was inconsistent with the principle applied in Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587.
5. Urgency and welfare. Appeals involving interim separation are among the most urgent public law hearings and should be listed within days or, at most, a very few weeks. On the evidence, the child’s short-term safety could be secured with his mother at the specialist resource, and reunion was therefore required.

1. High Court (Family Division): The appeal was allowed. The interim care order predicated on continued separation was set aside, and the child was to be returned to his mother within the specialist resource.
2. Family Proceedings Court: An interim care order was made on 1 November 2013 and continued after the contested hearing on 7 November 2013, with the child placed in foster care and contact with his mother arranged twice weekly.