N (Children: Interim Order/ Stay), Re

When deciding an interim application concerning children, the court must investigate the disputed issues sufficiently to make a fair and effective evaluation of the advantages and disadvantages for the children. The court has a wide discretion over procedure and may decide many applications without oral evidence. Where it elects to hear an accuser about disputed events on which the parents are primary witnesses, fairness may require it also to hear the parents.

Interim removal requires an adequate evaluation of the children’s welfare, including both the alleged risks and the harm caused by removal. A short stay enabling an urgent approach to the Court of Appeal is distinct from a stay pending appeal. Serious consideration should be given to preserving a narrow opportunity for an effective appeal, subject to the child’s paramount welfare.

Three children were living with their mother under interim care orders and an order excluding their father from the family home. The Family Court approved their removal into foster care after hearing oral evidence from the local authority’s social worker, but refusing requests to hear from the parents. The Children’s Guardian did not support removal.

The judge found reasonable grounds to believe that the exclusion arrangements had repeatedly been breached. She considered removal necessary and proportionate, refused permission to appeal and refused a short stay. The children were removed that evening.

The mother appealed on grounds including procedural unfairness, inadequate welfare evaluation and use of the wrong standard of proof. The central issues were whether the investigation and welfare evaluation justified interim removal and whether a short stay should have been granted.

1. Appeal allowed. A court exercising interim powers concerning children acts upon incomplete information and may need to act urgently. The principles of child welfare, family rights and procedural fairness nevertheless continue to govern its provisional task.

2. The court must undertake an investigation appropriate to the issues and sufficient to permit a fair and effective evaluation of the advantages and disadvantages for the children. It has a wide and flexible discretion over the conduct of that investigation. Depending on the issues, a decision may properly be made without oral evidence.

3. Once the judge decided to hear evidence about the disputed events, fairness required her to hear both the accuser and the accused. The parents were primary witnesses and had provided potentially plausible explanations rather than bare denials. By hearing the social worker while largely leaving the parents’ accounts out of consideration, the judge conducted an investigation that was neither fair nor effective.

4. The welfare evaluation was also inadequate. Compliance with the working agreement and exclusion order was important, but risk alone could not determine the issue. The judge did not adequately assess the harm caused by removal, overstated the alleged risks as grave and relied on relatively flimsy evidence. The test for interim removal could not reasonably have been met.

5. The children were ordered to return immediately to their mother. The interim care orders remained in force, as did the exclusion order under section 38A of the Children Act 1989 and the mother’s written agreement. The result did not bind the court at the final hearing or on any future interim application.

6. A short stay preserving an opportunity to seek urgent appellate relief is a practical remedy distinct from permission to appeal and from a stay pending appeal. Following Re A [2007] EWCA 899, the judge should give serious consideration to preserving a narrow opportunity for an effective appeal, subject to the child’s paramount welfare. The short stay should have been granted because the suggested risks during a brief delay did not justify immediate implementation and the mother faced particular difficulty instructing her lawyers.

1. Court of Appeal (Civil Division): Allowed the mother’s appeal, ordered the children’s immediate return to her care, and maintained the interim care orders and the father’s exclusion from the home.

2. Family Court at Coventry: Approved the children’s removal into foster care under existing interim care orders and refused permission to appeal and a short stay.