C (A Child : Interim Separation)

Interim separation of a child from a parent under an interim care order is justified only where it is necessary and proportionate. The lower threshold for making an interim care order does not itself justify removal. The court must assess the nature, likelihood and consequences of the risk, consider measures that could mitigate it, and weigh those matters against the serious interference with family life and the developing parent-child bond.

An appellate court will not interfere with a family judge’s evaluative welfare decision unless the evidence was ignored or misunderstood, or the assessment was so inadequate that the conclusion was wrong or perverse.

The local authority appealed against HHJ Sharpe’s order that a five-month-old baby, who had been temporarily placed in foster care, should be reunited with her mother in a different residential placement.

The appeal followed an incident in which the mother fell from her wheelchair while carrying the child. The original placement ended after the incident. The judge found that it was an accident, that the risks were not likely or imminent, and that separation was not a proportionate response where an alternative supported placement was available.

The local authority and the Children’s Guardian contended that the judge’s assessment of risk was perverse and that the alternative placement lacked sufficient safeguards. The central issue was whether the risk to the child required interim separation despite the benefits of maintaining the developing attachment.

1. Appeal dismissed. Peter Jackson LJ, with whom David Richards LJ and Lewison LJ agreed, held that the judge had applied the correct test and had reached a reasoned conclusion open to him on the evidence.

2. The applicable approach was that stated in Re C (A Child) [2019] EWCA Civ 1998. Interim separation is a particularly acute interference with family life, especially for a baby. It is permissible only where necessary and proportionate. The court must decide whether the child’s physical safety or psychological or emotional welfare demands separation, and whether the likely duration and consequences of separation proportionately respond to the identified risks. Available resources capable of avoiding separation must be identified.

3. The judge was entitled to find that the fall was an accident and that neither a sling nor intensive CCTV would have eliminated all risk. Even if the incident showed a greater degree of culpability than the judge found, he had separately considered proportionality. Serious injury was possible, but the risks were neither likely nor imminent. The evidence of positive attachment, the child’s benefit from her mother’s care, and the availability of another supported placement were material counterweights.

4. The Court of Appeal’s role was limited. Following Re B (A Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33, a family judge has a distinctive advantage when evaluating evidence about future parenting. The appeal court will not substitute its own welfare assessment merely because professional witnesses take a different view. The risk assessment properly required consideration of the type, likelihood and consequences of harm, and mitigating resources: Re F (A Child)(Placement Order: Proportionality) [2018] EWCA Civ 2761.

5. The judge was also entitled to conclude that reduced CCTV coverage at the alternative placement did not make it unsuitable. The decision to reunite mother and child was therefore upheld.

• Court of Appeal (Civil Division): dismissed the local authority’s appeal and upheld the decision that interim separation was neither necessary nor proportionate.
• Liverpool Civil and Family Court: HHJ Sharpe ordered on 31 January 2020 that the child should be reunited with her mother in a different residential placement.