C (A Child) (Interim Separation), Re

Interim separation of a child from a parent under section 38 of the Children Act 1989 requires a distinct assessment of necessity and proportionality. The lower threshold for an interim care order does not justify separation unless the child’s safety or welfare demands it. The court must consider the incomplete state of the evidence, the effect on family life and attachment, the likely duration and consequences of separation, and all available alternatives. A decision based principally on a recent failed placement, without properly considering a viable alternative joint placement and the wider evidence, will not meet that high standard.

The local authority obtained an interim care order concerning a four-month-old child and repeatedly sought his separation from his young mother because of concerns about her relationship with the father, dishonesty, and her compliance with safety arrangements.

After a second mother-and-baby foster placement broke down, Recorder Wigoder found that the mother had deliberately sabotaged it. He authorised the child’s removal into foster care. A stay granted by the Court of Appeal enabled mother and child to move to a further mother-and-baby placement, where the placement was progressing well.

The mother appealed. The central issue was whether the findings about the failed placement made interim separation a necessary and proportionate response.

1. The appeal was allowed on Ground 2. The Recorder’s order authorising separation was set aside. The matter was restored for an early hearing before the Designated Family Judge to make orders supporting and defining the purpose of the current joint placement.

2. An interim order under section 38 of the Children Act 1989 is made when the evidence is incomplete and should regulate only matters that cannot await the final hearing. Separation is a sharp interference with Article 8 family life, particularly for a baby whose attachment to the parent is developing. It is justified only where necessary and proportionate, and where the child’s physical safety or psychological or emotional welfare demands it.

3. The Recorder was entitled to find that the mother had sabotaged the second placement and had been untruthful. He was also entitled to regard unsupervised care in the community as unsafe. However, he did not properly bring the wider circumstances into the necessity and proportionality assessment. He placed excessive weight on eleven days in the second placement.

4. A further mother-and-baby placement was a realistic alternative. The conclusion that the mother would inevitably sabotage it failed to consider the longer first placement. The Guardian’s remotely given instructions could carry little weight without a current analysis. The mother’s rejection of safety advice was concerning but did not itself justify separation, and any contact with the father had not been proved to create an immediate risk while mother and child remained in supervised accommodation.

5. The court stressed that the decision did not preclude future separation if circumstances later made it necessary and proportionate.

• Court of Appeal (Civil Division): Allowed the mother’s appeal on the necessity and proportionality of interim separation. It set aside the separation order and restored the matter for an early hearing before the Designated Family Judge.
• Family Court at Lincoln (Recorder Wigoder): On the local authority’s application, authorised interim separation of the child from the mother following the breakdown of a mother-and-baby foster placement.