T (Children), Re

An interim care order involving separation from existing family carers requires circumstances that cannot await the final hearing and a conclusion that the children’s safety demands immediate separation. The standard is very high. A useful or urgent assessment plan is insufficient by itself. Emotional and psychological safety may satisfy the test where continuing and deteriorating behaviour risks serious damage to development or the possibility of siblings remaining together, even without an immediate physical emergency. Long-term suitability and immediate safety are distinct questions. A court may leave carers under consideration for a final placement while ordering interim separation. An appellate court should respect a first-instance evaluative conclusion where the correct test was identified and supported by evidence. The approach reflects [2010] 1 FLR 80 and [2011] 1 FLR 669.

Two children had been living with their paternal grandparents during care proceedings arising from the parents’ harmful care. The local authority sought an interim care order removing the children to a specialist foster placement for assessment, while leaving the final care plan open. The trial judge declined to rule out the grandparents as possible long-term carers but ordered immediate removal, finding significant continuing emotional and psychological risks, including deteriorating behaviour and possible damage to the children’s relationship. The grandparents appealed from the Bournemouth County Court. The central issue was whether the evidence established that the children’s safety required immediate separation before the final hearing.

Lord Justice McFarlane delivered the principal judgment. Lord Justice Ryder agreed, and Lord Justice Christopher Clarke agreed with both judgments. The appeal was dismissed.

1. The governing test, stated by reference to Re L-A (Children) [2010] 1 FLR 80, required circumstances that could not await the final hearing and separation from current family carers only where the children’s safety demanded immediate separation. Re GR (Care Order) [2011] 1 FLR 669 confirmed that the standard was very high.
2. The judge’s refusal to rule out the grandparents as long-term carers did not conflict with an interim removal order. Long-term capacity and immediate safety were separate questions. The judge could keep the grandparents under consideration while deciding that the children’s present circumstances required separation.
3. The relevant safety risk was emotional and psychological. The children had suffered significant harm in the parents’ care, their behaviour had continued and deteriorated with the grandparents, and the grandparents had limited ability to manage it. In particular, J’s behaviour created serious implications for his development and for the possibility that the siblings could continue to live together. That evidence was capable of establishing safety requiring immediate separation, despite the absence of a physical emergency.
4. Re B (Children) [2010] EWCA Civ 329 was not on all fours. It concerned a child who had not been in the mother’s care and where the mother’s parenting formed the basis of the threshold findings. It did not displace the ordinary immediate-safety test in the present case.
5. Where a first-instance judge identifies the correct test, states that it is being applied, and relates the conclusion to the evidence, the appellate court should be slow to interfere with the evaluative judgment.
6. The judge’s limited stay was strongly criticised. In a case lacking the character of a 999 emergency, the first-instance court should grant a short but reasonable stay sufficient to permit an application to the Court of Appeal. That procedural criticism did not itself require the interim care order to be set aside.

• Court of Appeal (Civil Division) — In [2015] EWCA Civ 453, the appeal against the interim care order was dismissed.
• Bournemouth County Court — His Honour Judge Meston QC declined to rule out the paternal grandparents as long-term carers but made an interim care order removing the children to specialist foster care pending further assessment.