B-C (A Child), Re

Where a local authority has been refused an emergency protection order and then applies for an interim care order, the applications remain procedurally distinct even though the removal test is similar. The court should hear the interim application, determine it by granting or refusing the order, or adjourn it briefly for that purpose. Simply declining to list it may deprive the authority of the appeal available from an interim care order, because no appeal lies from an emergency protection order decision under section 45(10) of the Children Act 1989. Setting aside such a refusal does not require the court to make an interim care order or allow the hearing time sought; those matters remain subject to case management and the overriding objective.

The local authority commenced care proceedings concerning a child who had suffered serious medical and physical difficulties and had previously sustained a non-accidental injury. Following further injuries after contact with his father, the authority applied for an emergency protection order, a full care order and an interim care order.

On 8 July 2016, Judge Dancey refused the emergency protection order. On 14 July, after further medical and social-work evidence became available, the authority sought a contested interim care order hearing. The judge declined to list it, treating the removal test as very similar to that applicable to the emergency protection order and finding that the new material did not justify a further hearing.

The central issue was whether, after an emergency protection order had been refused, the court could simply decline to entertain or list a subsequent interim care order application.

1. Permission and disposition. Permission to appeal was granted and the appeal was allowed. The refusal to list the interim care order application was set aside. The Court of Appeal did not determine whether an interim care order should be made.
2. Distinct procedural applications. The emergency protection order application determined on 8 July was distinct from the later interim care order application, although the test for removing the child was very similar. Under section 45(10) of the Children Act 1989, no appeal lay from the making or refusal of the emergency protection order.
3. Access to an appeal. The later interim care order application was the available route by which the authority could obtain a decision capable of appeal. The judge therefore should have heard and granted or dismissed the application, or adjourned it briefly so that it could be heard and determined. Simply declining to list it denied the authority an opportunity to challenge the interim threshold and the alleged imminent risk of serious harm. That was a procedural error, not merely an ordinary case-management decision.
4. Limits of the order. The appeal did not compel the authority to renew its application or require the court to allow the two days sought. The length and proportionate allocation of any hearing remained subject to case management and the overriding objective under the Family Procedure Rules.
5. Further hearing. The Court of Appeal was not persuaded that Judge Dancey had prejudged the merits. If the authority renewed the application, it could appropriately be listed before him, with the decision being made on the evidence then available.

• Court of Appeal (Civil Division) — In [2016] EWCA Civ 970, permission to appeal was granted and the appeal was allowed. The refusal to list the interim care order application was set aside.
• Bournemouth and Poole County Court and Family Court — On 14 July 2016, His Honour Judge Dancey declined to list the local authority’s contested interim care order application.