B (Children) (Remote Hearing: Interim Care Order)

Remote hearings during the COVID-19 pandemic do not alter substantive law or procedural fairness. A remote hearing is fair only where its additional burdens do not compromise those principles. Immediate removal under an interim care order is a sharp interference with family life. It must be necessary to protect the child’s physical safety or psychological or emotional welfare, and the separation must be proportionate to the risks of leaving the child at home. A lockdown, or the existence of an interim threshold, does not itself justify removal. Each child requires an individual assessment. Where a case is not genuinely urgent or crucial information is missing, an adjournment may be required.

This was an appeal by the maternal grandmother against an interim care order made by Recorder McCarthy QC in the West London Family Court on 3 April 2020 during a telephone hearing. The order removed Sam, aged nine, from her care and placed him in foster care. The local authority had initially sought an interim supervision order for Sam and an interim care order for his sister, Samantha.

During the hearing, following the Children’s Guardian’s recommendation, the local authority changed its plan and sought Sam’s immediate removal. The grandmother sought an adjournment to take instructions and respond to the changed case. The central issues were whether removal was necessary and proportionate, and whether the remote process preserved procedural fairness.

Appeal allowed. The interim care order made at the telephone hearing was set aside and Sam returned to his grandmother’s care.

1. The COVID-19 pandemic did not alter substantive law or procedural fairness. Remote hearings may replicate some, but not all, characteristics of attended hearings. Courts must account for the additional burdens placed on participants and distinguish decisions requiring priority from those that can wait.
2. The court applied the principles governing interim separation stated in C (A Child) (Interim Separation) [2019] EWCA Civ 1998. Removal at an interim stage is a particularly sharp interference with family life. It may be sanctioned only where the child’s physical safety or psychological or emotional welfare makes it necessary, and where the length and likely consequences of separation are proportionate to the risks that would arise without it.
3. The Recorder was entitled to find that there were reasonable grounds for believing that the interim threshold under sections 31 and 38 of the Children Act 1989 was crossed. That finding did not itself justify immediate removal. The court had to undertake a separate welfare, necessity and proportionality assessment.
4. Each child had to be considered individually. The fact that an interim care order was justified for Samantha did not establish that one was justified for Sam, although the grandmother’s conduct towards one child could be relevant to the assessment of her protective and parenting capacity in relation to the other.
5. The court rejected the argument that the application was an emergency for Sam merely because it had arisen from urgent proceedings concerning Samantha. Lockdown could not justify removal where no equivalent basis for removal would otherwise exist. A marginal case might arise where face-to-face supervision was essential to safety, but this case was far from that category.
6. The local authority’s change from seeking supervision to seeking immediate removal was undocumented and unreasoned, and no supporting care plan was produced. The grandmother had no meaningful opportunity to file evidence or respond to the changed case. In a case lacking genuine urgency and with crucial information missing, an adjournment was required to permit a considered decision. The availability of a video hearing could itself support an adjournment; where available, video was likely to be the default option in urgent cases.

The proceedings were reset. Any later application for a different interim order could be considered in the ordinary way and given appropriate priority.

• Court of Appeal (Civil Division) — Allowed the appeal from the West London Family Court, set aside the interim care order made on 3 April 2020, and restored Sam to his grandmother’s care. [2020] EWCA Civ 584