C and D (Children), Re

A court should not make final care orders while the children’s long-term placement remains unknown and material issues requiring judicial determination remain unresolved. For an interim care order, satisfaction of the threshold under section 38 of the Children Act 1989 is only the first step. The court must then decide under section 1 whether the children’s safety and welfare require immediate removal, on a careful appraisal of up-to-date evidence. Where current evidence and the care plan do not justify removal, an interim supervision order may be appropriate. Setting aside premature final orders does not necessarily reject the trial judge’s welfare findings or exclude any realistic long-term placement option.

The mother appealed against final care orders made by HHJ Tolson QC in respect of her two sons, aged nine and six. The children had serious behavioural and developmental difficulties, and the judge found that their care by the mother had caused significant harm. He ordered removal into foster care while assessment of placement with their father continued.

The mother and children’s guardian argued that the proceedings were not ready for final determination. The local authority ultimately accepted that the final orders should be set aside. The principal issues were whether the case should have been adjourned and whether the children should remain at home or be removed pending the final hearing.

1. Final care orders. The appeal was allowed. The court must respect the responsibilities assigned to local authorities, but should not make final orders where the children’s long-term placement remains unknown and outstanding issues remain which should properly be determined by a court. The proceedings had not been ready for final determination at the issues resolution hearing and were even less ready after the evidence had been heard. The judge was therefore premature in making final care orders.
2. Scope of the decision. The appellate decision did not endorse the criticisms made of the judge’s evaluation of the evidence. There was cogent evidence that the mother’s parenting had been deficient and had contributed to the children’s behaviour. Nevertheless, the four realistic long-term options remained open: care by the mother; care by the mother with specialist support; placement with the father; or long-term foster care.
3. Interim placement. The threshold for an interim care order under section 38 of the Children Act 1989 was satisfied. Applying section 1 of that Act, however, the guiding principle was whether the children’s safety and welfare required immediate removal, assessed on up-to-date evidence, as stated in Re L-A (Children) (Care Proceedings : Interim Care Order) [2009] EWCA Civ 822. The court was not satisfied that removal was justified because there was little current information, the children’s reaction to removal was uncertain, no sufficiently clear current care plan had been provided, and the guardian opposed removal. An interim supervision order was therefore made, without precluding a later application for an interim care order.
4. Orders. The final care orders were set aside. The children were placed under the supervision of the London Borough of Wandsworth pending conclusion of the proceedings. The proceedings were referred urgently for directions and allocation, with further details of support and parental assessments to be provided.

• Court of Appeal (Civil Division): On the appeal in [2019] EWCA Civ 1692, the final care orders were set aside and interim supervision orders were made.
• Central Family Court: HHJ Tolson QC made final care orders for both children on 27 August 2019.