N (Children) (Interim Care), Re

Removal under an interim care order is justified only where it is necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand separation, and the likely consequences of separation must be proportionate to the risks of leaving the child in place.

The court must balance the risks of remaining against the harm of removal. Certain and substantial emotional harm caused by disrupting a settled family placement cannot be outweighed by risks that are nebulous, speculative or insufficiently evidenced. The local authority bears the burden of proof throughout. In care proceedings, expert evidence should be authorised where it is necessary to resolve the issues justly, although the court may require a focused instruction.

Care proceedings concerned three young children who had lived with their maternal grandparents for approximately eighteen months after being left in their care. The local authority initially supported that placement but later sought the children’s removal following further allegations concerning conflict and safeguarding within the maternal family.

At a hearing on 25 June 2020, Mr Recorder Benjamin made interim care orders placing the children in foster care and refused applications for a psychological assessment. The children’s mother and grandparents appealed against the interim care orders. The children’s guardian appealed against refusal of the assessment. The central issues were whether removal was necessary and proportionate on the evidence, and whether psychological expert evidence was necessary to resolve the proceedings.

Appeals allowed. Baker LJ gave the judgment, with Peter Jackson LJ and McCombe LJ agreeing.

1. Separation under an interim care order is justified only where it is necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand separation, and the length and likely consequences of separation must be proportionate to the risks that would arise if the child remained in place. This was the principle summarised from Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998.
2. The court must balance the risks of leaving the children with the harm caused by removal. The children were settled with their grandparents and had close relationships with them. Their emotional harm on removal would be substantial. The risks relied upon by the local authority were largely nebulous and speculative, and did not outweigh that certain harm. The recorder’s suggestion that the children might already be preparing for removal had no evidential foundation.
3. The burden of proof remained on the local authority. Professionals involved in public law proceedings had to ensure that recommendations were soundly based. That responsibility was particularly important in remote hearings, where unsubstantiated information about the aunt’s absence had materially affected the analysis.
4. Under sections 13(6) and 13(7) of the Children and Families Act 2014, expert evidence required necessity. A psychological assessment was necessary because there was evidence of developmental or psychological difficulties and because the effect of family conflict and dysfunction on the children was central. The court could identify the broad parameters of the assessment and require the parties to agree focused questions, consistently with the overriding objective, even though this represented a departure from the usual procedure under Part 25 of the Family Procedure Rules and Practice Direction 25C.
5. The interim care orders were discharged and replaced by child arrangements orders for the children to remain with the grandparents, together with interim supervision orders. Instruction of a child psychologist was authorised.

• Court of Appeal (Civil Division) — The appeals were allowed: [2020] EWCA Civ 1003.
• West London Family Court — Mr Recorder Benjamin made interim care orders removing the children from their grandparents and refused permission for a psychological assessment.