P (A Child) (Interim Separation)

An urgent decision to separate a child from a parent must be based on a practical assessment of the safe arrangements actually available when the decision is made. A theoretical alternative is not realistic where it cannot be implemented immediately and safely. The court should not pressure professionals to continue a placement they reasonably consider unsafe. Exceptional measures, such as full-time live-in supervision, cannot answer an immediate problem if they require time to arrange. Where no safe and immediately available alternative exists, temporary separation may be authorised pending a prompt full hearing, with contact maintained. The interim order does not determine the longer-term welfare decision.

C was subject to an interim care order and had been living with his mother in a residential assessment unit. Following serious deterioration in the mother’s behaviour and risks to C, the unit gave notice that the placement could not safely continue. The local authority urgently applied for permission to remove C to foster care.

On 1 April 2021, HHJ Greensmith refused the application and directed consideration of alternative support, including support in the mother’s home. The local authority appealed. The central issue was whether those proposed arrangements were realistic and immediately available alternatives to separation pending a fuller hearing.

1. The appeal was allowed. C was to remain in foster care with frequent contact with his mother until a full hearing. The hearing listed for the following week was retained so that prompt directions could be given for an effective longer-term decision.
2. The judge was right to recognise the importance of the child’s relationship with his mother and the possible consequences of separation. However, the court had to take a practical view of the situation at the time of the hearing.
3. The residential unit had concluded, on the basis of incidents occurring during a placement monitored for more than five months, that it could no longer safely continue. There was no proper basis to doubt that professional assessment, and it was inappropriate to pressure the unit to continue.
4. The remaining alternatives were theoretical or unsuitable. Unsupervised placement in the community was impossible at that stage. A different residential placement would take time to arrange. CCTV monitoring in the mother’s flat would provide less protection than a residential unit. Full-time live-in supervision was an exceptional measure and, even if appropriate in principle, could not be implemented immediately.
5. The judge therefore erred by treating the proposed home-support arrangement as immediately available. On the evidence, approving separation was the only practical solution on the afternoon of the hearing. The Court of Appeal expressed no view on the longer-term welfare decisions.

• Court of Appeal (Civil Division) allowed the local authority’s appeal on 6 April 2021 and directed that C remain in foster care with frequent contact pending a fuller hearing.
• Liverpool Family Court, HHJ Greensmith, refused the local authority’s urgent application for permission to remove C from his mother and listed the case for a further hearing.