J (Children), Re

At a final hearing in care proceedings, once the threshold criteria are satisfied, the court must decide the child’s future by identifying the realistic options and analysing the advantages and disadvantages of each. It must undertake a global, holistic welfare evaluation rather than reject options sequentially until only the most interventionist remains.

The stringent Re L-A test applies to interim removal at an early stage, when the court lacks the evidence needed for final findings. It ordinarily has no application at the end of a final hearing. Any interim placement required after a short adjournment should be determined by a straightforward welfare assessment.

A mother appealed against an interim care order made after a four-day hearing concerning two of her children. The threshold under section 31(2) of the Children Act 1989 had been agreed, but the local authority invited the recorder to decide whether the children should be permanently removed and then to make interim care orders pending consideration of special guardianship.

The recorder applied the interim-removal principles in Re L-A, concluded that the children’s safety required removal, and approved placement with a maternal aunt. The mother argued that the court had failed to apply the correct test and had not analysed the realistic alternatives. The central issue was whether the recorder had adopted the correct approach to a final welfare decision.

Baker LJ, with Newey and Floyd LJJ agreeing, held as follows.

1. The appeal was allowed. The order of 3 October 2019 was set aside, except for the child arrangements order concerning A. The case was remitted to Judge Rogers for further directions, with E and K to remain with their mother under an interim supervision order pending the conclusion of the proceedings or further order.
2. At a final hearing, after the threshold under section 31(2) of the Children Act 1989 is established, the court must apply section 1, including the paramountcy principle, the welfare checklist and the range of powers available under section 1(3)(g). It must identify the realistic options for the child’s future and analyse and compare the advantages and disadvantages of each before making a final order. This approach, reflected in Re B-S [2013] EWCA Civ 1146, applies throughout proceedings under section 31.
3. The recorder adopted a linear approach. He analysed the option of the children remaining with their mother but did not analyse the advantages and disadvantages of placement with the aunt and her partner, or other realistic possibilities. The non-linear, global and holistic approach was explained in Re G (A Child) [2013] EWCA Civ 965. It was particularly important here because the children had different needs and might have required separate or intermediate arrangements.
4. The Re L-A test, stated in Re L-A (Care: Chronic Neglect) [2010] 1 FLR 80 and applied in Re G (Interim Care Order) [2011] EWCA Civ 3745, is directed to an application for interim removal at an early stage. Removal is authorised only where the child’s safety, including psychological safety, requires interim protection and removal is proportionate to the risks of leaving the child in the existing care.
5. At the end of a final hearing, where the evidence is available and the threshold has been determined, it is ordinarily neither necessary nor appropriate to apply that interim-removal test. If a short adjournment is needed before the final decision, interim placement may be decided by a straightforward assessment of welfare. The Court expressed no view on the ultimate outcome after rehearing.

• Court of Appeal (Civil Division): allowed the appeal from the interim care order made by Mr Recorder Wigoder in the Family Court at Nottingham on 3 October 2019. The order was set aside, save for the child arrangements order concerning A, and the case was remitted to Judge Rogers for further directions and case management.
• Family Court at Nottingham: after a final hearing, made interim care orders for E and K to live with their maternal aunt and her partner, pending a further hearing at which special guardianship orders were to be considered.