M (Children : Interim Care Order)

An interim care order providing for immediate removal into foster care is permissible only where the children’s safety, including emotional safety, demands immediate separation. Establishing the statutory threshold is not enough. The court must identify the actual or feared harm likely if the children remain at home, weigh the positive features of their circumstances and the serious consequences of removal, and explain why immediate removal is necessary rather than allowing the children to remain pending further evidence. The issue is necessity for immediate separation, not whether placement elsewhere might be better. An interim supervision order may be appropriate where serious concerns require supervision but the evidence does not justify removal.

The mother appealed against an interim care order made by the Walsall County and Family Court on 12 December 2018. The order removed her three children, aged between seven and ten, into foster care during care proceedings. The local authority relied principally on allegations concerning the mother’s alleged involvement in the harsh treatment of related children in separate proceedings, together with other welfare concerns. The statutory threshold was accepted to have been crossed. The central issue was whether the evidence justified immediate removal before the evidence in the children’s own proceedings, including the outcome of the related proceedings, had been gathered.

Appeal allowed. The interim care order was set aside and replaced by an interim supervision order.

1. The court may make an interim care order with a plan for immediate removal only where satisfied that the children’s safety, including their emotional safety, demands immediate separation. The fact that the threshold for intervention under section 31 is crossed does not itself justify removal.
2. The decision-maker must identify the actual or feared harm likely to occur if the children remain at home. The court must also weigh the positive features of the children’s circumstances, the seriousness and effects of immediate removal for an indefinite period, and the impact of replacing their home life with restricted and supervised contact.
3. The court must explain why immediate removal is necessary and why the children cannot safely remain at home while further evidence is gathered. It is insufficient that placement elsewhere might be better, particularly where the court’s future findings may materially affect the assessment.
4. Although the evidence was sufficient to establish the threshold, it did not warrant immediate removal. The circumstances nevertheless justified supervision and support. The disposal did not prevent the local authority from making a further interim application if later evidence justified it.
5. Obiter: the court observed that, unless immediate removal is genuinely required, it is preferable for the first-instance judge to grant a conventional short stay when faced with an application for permission to appeal.

1. Court of Appeal (Civil Division) — on 20 December 2018, allowed the appeal and set aside the interim care order: [2018] EWCA Civ 3038.
2. Walsall County and Family Court — on 12 December 2018, made an interim care order authorising the children’s immediate removal into foster care.