H-B-S (Children: Discharge of Interim Care Order)

A court reviewing an interim care order may revisit the arrangements where further information has significantly changed the original risk assessment. Delay is presumed detrimental to children, but where children were removed for their protection, delay alone is unlikely to alter that assessment. Discharge during an unfinished fact-finding hearing is premature where the court lacks sufficient evidence to assess the risk of return and cannot balance it against the harms of continued separation. If delay is relied on, the court should establish its likely duration.

The local authority appealed from an order of HHJ Clarke in the Watford Family Court, case WD19C01494, discharging interim care orders concerning two children aged nine and seven. The orders had been made after the children were removed from the family home following allegations that another child had suffered serious injuries.

The fact-finding hearing was incomplete when missing interview transcripts caused a further adjournment. The mother then sought the children’s return, relying on delay, the absence of concerns about their care, and changed family circumstances. The central issue was whether the interim arrangements should be disturbed before the allegations and the resulting risks had been determined.

Appeal allowed. Lord Justice Peter Jackson gave the reasons, with Lord Justice Moylan agreeing. Paragraph 1 of the first-instance order was set aside, so that the interim care orders remained in effect.

1. The court has power to review the continuation of interim measures under section 38 of the Children Act 1989. It may revisit arrangements where the evidential balance has significantly changed. The essential question is whether further information has altered the original assessment of risk.
2. Delay in reaching a decision is presumed detrimental to children. However, where children have been removed for their protection, delay alone is unlikely to alter the risk assessment which justified removal.
3. The judge had been wrong to discharge the orders during the fact-finding hearing. There had been no significant change in the evidence, and the judge was not in a position to assess the risk of returning the children to their mother. He therefore could not properly assess the weight of separation, foster care, contact, or other welfare considerations against that risk.
4. The mother’s separation from Mr B might have been relevant to risk, but the judge had not relied on it and it could not have justified return at that stage. If delay is relied on, the court must at least establish the likely duration of the delay before reversing protective arrangements.

1. Court of Appeal (Civil Division): Permission to appeal was granted on 17 July 2020. The appeal was allowed in [2020] EWCA Civ 1027.
2. Watford Family Court: HHJ Clarke discharged the interim care orders during an adjourned fact-finding hearing in case WD19C01494.