W-J (Children), Re

An interim care order removing a child from parental care should be made only where the child’s emotional or physical safety requires immediate separation. The assessment must address the nature of the risk, including whether it can be predicted, contained or controlled. A short adjournment is not required where the evidence shows that leaving the child at home would remain unsafe. The Court of Appeal should generally decline to entertain a completely fresh application for a mandatory injunction on an urgent appeal, particularly where the issue was not raised below. Interim orders address short-term welfare and do not determine the outcome of the final care proceedings.

The mother appealed against an interim care order made by Deputy Circuit Judge O’Brien on 12 May 2015 in the Family Court at Canterbury. The order removed the youngest of her four children, aged two and a half, from her care because of the risk of unpredictable violent outbursts associated with her mental health difficulties.

Before the judge, the mother sought arrangements preserving the child’s care by her. On appeal, she argued that the decision should have been adjourned to allow a fuller search for a mother-and-child placement. She also advanced a new argument under the Human Rights Act 1996 for a mandatory injunction requiring the local authority to arrange such a placement.

The appeal was dismissed.

1. For an interim care order involving separation from a parent, the relevant question is whether the child’s emotional or physical safety requires immediate separation. The judge had directed himself correctly on that test, and no error was shown.
2. The evidence justified the conclusion that immediate separation was required. There had been two recent incidents in which the mother’s behaviour had caused injury. The older children had expressed a wish not to return to her care and had been able to report what had happened. The youngest child, aged two and a half, could not provide comparable protection. The crucial feature was that the mother’s outbursts could not be predicted, contained or controlled by her or by an outside agency. The risk therefore could not safely be left to a further period of investigation at home.
3. The judge was entitled to refuse an adjournment to search for an alternative placement. The evidence before him did not identify a realistic placement, and his conclusion that the child could not safely remain at home was justified on the material then available.
4. The mother’s original injunction application sought to prevent separation without identifying a safe arrangement by which mother and child could remain together. The new argument concerning a mandatory injunction, based on a particular placement and alleged unlawful local-authority conduct, had not been raised or determined below. The Court of Appeal declined to entertain that completely fresh application in an urgent appeal. It therefore made no final determination on the merits or scope of that proposed jurisdiction.
5. The order was an interim measure. The longer-term welfare decision required further evidence, including a full psychiatric assessment, and proper consideration of the mother’s positive parenting qualities.

• Court of Appeal (Civil Division). The appeal against the interim care order was dismissed unanimously.
• Family Court at Canterbury. On 12 May 2015, Deputy Circuit Judge O’Brien made an interim care order placing the youngest child in foster care after concluding that immediate separation from the mother was required for the child’s safety.