Z (Interim Care Order) (Rev 1)

An appellate court may allow an appeal against an interim care order on procedural grounds even where removal may have been justified on the evidence. In care proceedings, a child's ability to instruct a solicitor must be assessed through a current, issue-specific assessment. Where professional evidence includes disputed factual matters, fairness may require the parent to have an opportunity to give evidence before removal. An interim order must rest on a care plan consistent with its temporary character and must not effectively predetermine final placement. Pending rehearing, a short-term order may be made where the interim threshold is crossed and returning the child risks a further removal.

Private law proceedings concerning Z, aged 15, had continued for several years after his parents separated. Z lived with his father, had a severely damaged relationship with his mother and experienced significant educational and emotional difficulties. The local authority eventually issued care proceedings under section 31 of the Children Act 1989 and sought an interim care order providing for removal to a bridging foster placement and later placement with the mother.

On 12 November 2020, HH Judge George made the order after hearing professional evidence. The father had not given evidence on removal, and the court relied on an earlier assessment that Z lacked competence to instruct a solicitor. The father appealed, challenging the procedural fairness of the hearing, the assessment of Z's participation, the care plan and the proportionality of removal.

Appeal allowed. Baker LJ, with Arnold and Floyd LJJ agreeing, accepted that the decision to remove Z was not necessarily wrong on its merits. The judge had considered Z's wishes, the balance of harm and the need for proportionality. The appeal nevertheless succeeded because the procedure adopted was irregular.

1. Competence and participation. The representation provisions in section 41 of the Children Act 1989 and Part 16 of the Family Procedure Rules required the court to address competence in the public law proceedings. Applying the approach in Re W (A Child) [2016] EWCA Civ 1051 and Re S (A Minor) (Independent Representation) [1993] 2 FLR 437, competence is fact-sensitive and relative to the issues in the proceedings. The July assessment from the private law proceedings could not properly be relied on in November. Time had passed, the proceedings involved statutory intervention in family life, and the central issue had changed from contact with the mother to removal from the father. The court also observed that there were strong arguments for taking steps to facilitate the effective participation of a disabled child under Article 13(1) of the UN Convention on the Rights of Persons with Disabilities 2006.
2. Fairness and evidence. Re N (Children) (Interim Order/Stay) [2020] EWCA Civ 1070 distinguished cases involving professional opinion alone from cases where professional evidence also contained disputed factual matters. This case fell into the latter category. Fairness therefore required the father to have an opportunity to give evidence before the court authorised removal lasting until the conclusion of the care proceedings.
3. Care plan. The approved plan proposed a bridging placement followed by placement with the mother within three to six months and expressly ruled out rehabilitation to the father. It was inconsistent with the judge's express decision to make no findings and reach no final conclusion, and with the continuing uncertainty about reconciliation with the mother. The plan should not have been approved, and the order should not have been made on that basis.

The interim care order was set aside and the application remitted for an urgent rehearing before another judge, with allocation to be considered at High Court level. The application to adduce fresh evidence was refused. Exercising the lower court's powers under rule 50.20 of the Civil Procedure Rules, the Court made a short-term interim care order on the revised plan pending rehearing. The threshold under section 38 of the Children Act 1989 was plainly crossed, and returning Z to his father for a few weeks risked a further removal.

1. Court of Appeal (Civil Division) — On 18 December 2020, permission to appeal was granted, fresh evidence was refused, and the appeal was allowed. The interim care order was set aside, the application was remitted for urgent rehearing before another judge, and a short-term interim care order was made pending rehearing: [2020] EWCA Civ 1755.
2. Family Court at Guildford — On 12 November 2020, HH Judge George made an interim care order placing Z in the local authority's care, with a plan for removal from his father to foster care and later placement with his mother.