Re T (Children)

In urgent interim care proceedings, the court must assess alleged risk by reference to all material evidence and the wider context. It must not treat inability to identify a parent from one item, such as CCTV, as resolving the application where other police disclosure and circumstantial evidence may bear on the issue. Hearsay ordinarily affects weight rather than admissibility. If material information is disregarded, the court should explain why. The welfare assessment must address physical and emotional safety, earlier concerns, compliance with safeguards, and the consequences of removal or separation. An interim finding need not bind the final hearing, but may materially inform future interim arrangements.

Care proceedings concerned three young children who had been living with their father under interim care orders. After further police referrals, alleged drug-related threats, and reports that the mother had attended the family home, the local authority removed the children to foster care and sought continuation of that arrangement pending the final hearing.

On 11 July 2023, the Liverpool Family Court refused the application and directed that the children return to the father when released from police custody. The local authority appealed, arguing that the Recorder had treated the inability to identify the father from CCTV as decisive and had failed to assess the wider police, circumstantial and welfare evidence. The central issue was whether the interim risk assessment had considered all material evidence in context.

Macur LJ gave the reasons for judgment, with which Males LJ and Whipple LJ agreed.

1. Disposition. The appeal was allowed. The matter was remitted for an urgent Further Case Management Hearing to relist the local authority’s extant application. The interim order keeping the children in foster care was continued. The mother’s separate application for permission to appeal was dismissed summarily.
2. The Recorder was entitled to find that the CCTV footage alone did not establish that the father was one of the men involved in the attempted aggravated burglary. That finding could not be faulted. However, the application required consideration of all material evidence. The police incident log, identification evidence, information concerning the father’s alleged alias, and the mother’s unprompted disclosures about drug debt and possible reprisals were relevant circumstantial evidence. The Recorder had not adequately engaged with that material.
3. Although the information might have been hearsay, that affected weight rather than admissibility. Where substantial information was disregarded, the court was required to explain why. The finding about the father’s involvement had therefore been reached without regard to all the evidence. A positive interim finding would not bind the final court, but would have important implications for earlier concerns and future interim arrangements.
4. The risk and welfare assessment also had to be holistic. It required consideration of physical safety, emotional well-being, alleged drug use and associations, possible drug debt and reprisals, compliance with the contract of expectations, and the consequences of removal and possible separation. The Recorder’s failure to address the children’s reports that their mother had attended the home reflected the compartmentalised approach identified in Re O (A Child) (Interim Care Order) [2019] EWCA Civ 583 at [21].
5. Urgency and the extempore nature of the judgment justified allowance for some omission of detail, but did not cure the failure to address material evidence or explain its rejection. The application required rehearing.

• Court of Appeal (Civil Division) — allowed the appeal and remitted the matter for an urgent Further Case Management Hearing to relist the local authority’s application. The interim foster-care order was continued.
• Liverpool Family Court — on 11 July 2023, Ms Recorder Heaton KC refused the local authority’s application to continue the children’s removal and ordered their return to the father when he was released from police custody.