O (A Child): Interim Care Order

When deciding whether to continue an interim care order that separates a child from a parent, the court must undertake a genuine proportionality assessment. It must evaluate, on the evidence as a whole and in the circumstances as they presently exist, the risk of harm from returning the child and any harm caused by continued separation.

The court must give reasons for departing from relevant professional evidence. It should not pre-empt an imminent assessment or make findings that properly belong to the final hearing. An appellate court will not readily interfere with an interim welfare decision, particularly where the judge knows the case well, but must intervene where the decision is clearly wrong.

A six-year-old child with additional needs entered foster care under an interim care order after a serious violent incident at his mother's home. The mother was arrested but was later told that she would not be prosecuted. Longstanding concerns remained about neglect, domestic violence, risky adults, the mother's insight and her capacity to meet the child's needs.

HHJ Wicks discharged the interim care order and substituted an interim supervision order. He concluded that the harm caused by separation outweighed the risk of returning the child to his mother. The local authority appealed. The children's guardian supported the appeal, while the mother opposed it.

The central issue was whether the judge had undertaken a legally sustainable assessment of the competing risks at the interim stage, particularly when an independent social work assessment was shortly due.

1. Appeal allowed. The decision to discharge the interim care order was clearly wrong. The relevant parts of the judge's order were set aside, restoring the interim care order.

2. The required proportionality exercise had not been undertaken meaningfully. In accordance with Re B (Care Proceedings: Interim Care Order) [2009] EWCA Civ 1254, the court had to ask whether continued removal was proportionate to the risk of harm arising if the child returned home. The judge failed to assess both sides of that balance on a sound evidential basis.

3. The serious incident in the family home remained highly relevant even though the mother was not prosecuted. The circumstances that allowed it to occur, the mother's involvement and insight, the presence of a dangerous adult and the child's experience all required careful assessment. Conversely, the evidence did not support a finding that the child was suffering harm in foster care merely because he missed his mother or displayed increased behavioural difficulties.

4. The judge omitted the professional evidence that the child was relatively happy and settled. He gave no reasons for departing from the views of the guardian and social worker. Concerns about the local authority's performance could not determine the welfare balance.

5. An interim welfare assessment must consider the evidence as a whole and the circumstances as they presently exist. The judge's hypothetical inquiry into whether removal would have occurred without the violent incident wrongly compartmentalised longstanding and potentially connected risks.

6. The mother's ability to meet the child's needs remained unassessed. It was wrong to pre-empt an independent social work report that was due shortly, particularly when an adverse assessment might have required a rapid reversal of the child's return home. The judge also impermissibly anticipated findings that properly belonged to the final hearing.

7. Davis LJ agreed. The unresolved risks, evidential deficiencies and imminent assessment required the status quo to be maintained at the interim stage. Although appellate intervention in interim decisions is not undertaken readily, the flawed balancing exercise vitiated the exercise of discretion.

• Court of Appeal (Civil Division): The appeal was allowed. The relevant parts of the order were set aside and the interim care order was restored: [2019] EWCA Civ 583.
• Family Court at Northampton: HHJ Wicks discharged the interim care order and substituted an interim supervision order, permitting the child to return to his mother's care. The lower court's citation is not stated in the judgment.