DD (Removal under ICO)

Removal under an interim care order is justified only where it is necessary and proportionate. The lower reasonable-grounds threshold for making an interim care order does not dilute that requirement. The court must consider whether physical safety or psychological or emotional welfare requires immediate separation, including the likely consequences, duration and available alternatives. Where an amended care plan and undertakings can manage the identified risks until the final hearing, removal may be unnecessary. Evidential issues arising in ongoing proceedings, such as contact supervision, should ordinarily be left to the first-instance court.

The father and AH appealed against an interim care order made by the Family Court at Middlesbrough in respect of D. The order provided for D’s removal from AH, with whom she had lived for nearly two years, and placement with GT and SB pending the conclusion of care proceedings. The appeal followed an increase in concerns about volatility between the father and AH after repeated separations and reconciliations. The central issue was whether immediate removal remained necessary and proportionate, or whether D could remain with AH under protective arrangements. The Court of Appeal also considered whether the father’s contact should be supervised.

The appeals were allowed. Baker LJ delivered the judgment, with Carr LJ agreeing. The interim care order was substituted on the basis of an amended care plan and undertakings.

1. Applicable principles. The Court applied the principles summarised by Peter Jackson LJ in Re C (A Child)(Interim Separation) [2019] EWCA Civ 1998. An interim order regulates matters that cannot await the final hearing. Separation is a particularly sharp interference with family life under Article 8 and is justified only where it is necessary and proportionate. The lower reasonable-grounds threshold for an interim care order does not dispense with that exacting requirement.
2. Application. Although the first-instance judge had approached the issue carefully, the conclusion that removal was required did not accord with those principles. D was settled with AH, the interim arrangements had continued for over 14 months, the final hearing was only weeks away, and the relationship volatility had been known throughout the proceedings. Further discussions should have enabled protective arrangements allowing D to remain with AH. The risk therefore did not require immediate removal.
3. Protective arrangements and contact. The local authority’s amended plan, together with undertakings by the father not to enter the home and by AH not to permit his entry or facilitate unauthorised contact, addressed the concerns about removal. The local authority was required to file the amended plan by 10 am on 20 January 2021 and agreed that D would not be removed from AH until the proceedings ended or further order.
4. Supervision. Whether the father’s contact required supervision was a finely balanced evidential issue for the Family Court. The Court of Appeal did not determine it. The father could apply at the next hearing under section 34 of the Children Act 1989 for unsupervised contact.

• Court of Appeal (Civil Division) — on 18 January 2021, allowed the appeal and substituted an interim care order on the basis of an amended care plan and undertakings: [2021] EWCA Civ 36.
• Family Court at Middlesbrough — HH Judge Cains made an interim care order providing for D’s removal from AH and placement with GT and SB. Permission to appeal was refused, subject to a short stay.