K (Children)

At an interim stage, separation of children from a parent under an interim care order is justified only where it is necessary and proportionate. The interim threshold alone does not meet that exacting requirement.

The court must assess whether the children’s physical safety or psychological or emotional welfare demands separation. It must balance the risks of return against the real consequences of separation. That assessment must take proper account of the history, the parent’s insight and the available professional evidence. A judge should not resolve the ultimate assessment of future risk on incomplete evidence, or depart from core professional advice without adequate reasons and a sound evidential basis.

The local authority appealed against Her Honour Judge Reardon’s decision in the Family Court at East London to discharge interim care orders concerning two children and replace them with interim supervision orders.

The children had previously been removed after serious physical chastisement by their mother. They returned home following assessments and support, but the mother later struck one child in a school playground. The local authority and Children’s Guardian considered that the children should remain in foster care pending further assessment. The judge instead treated the incident as capable of being an isolated relapse and concluded that continued removal was disproportionate.

The central issue was whether the judge had properly assessed and balanced the immediate risks of return against the effects of continued separation.

1. Appeal allowed. The judge’s decision to discharge the interim care orders was not open to her. The parents’ application to discharge those orders should have been dismissed.

2. Applying the approach summarised in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998, the interim threshold was plainly crossed, but the decisive question was whether the children’s physical and emotional safety demanded continued separation. Interim separation is a sharp interference with family life and must be necessary and proportionate.

3. The judge had effectively predetermined the ultimate issue of the significance of the recent assault for the children’s future safety. The causes of the mother’s behaviour were not fully understood. It was therefore unsafe, on incomplete evidence and her expressions of remorse, to find that the incident was an isolated relapse unlikely to recur. Remorse had not previously protected the children.

4. The judge also focused too narrowly on the latest incident. A proper assessment required regard to the history of repeated and serious over-chastisement, the use of implements, the assault on a different child, and the mother’s repeated minimisation of the conduct. Those matters supported the social worker’s and Guardian’s assessment of continuing risk.

5. The children’s unhappiness at separation did not itself establish that a foster placement made for their safety was harmful. Further, although a court may depart from core professional advice, it must explain why and identify a solid evidential foundation. The judge had not explained her departure from the Guardian’s recommendation.

6. On the correct balance, the immediate priority was to protect the children from the physical and emotional risks arising from the mother’s behaviour. Interim supervision orders could not provide that protection. The existing judge could continue to hear the proceedings so that they could be concluded promptly.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal in [2019] EWCA Civ 2264 and held that the interim care orders should continue.
• Family Court at East London: On 3 December 2019, Her Honour Judge Reardon discharged the interim care orders and made interim supervision orders, permitting the children’s return home.