J & Ors (Children: Interim Removal), Re

An interim care order does not, by itself, justify removing a child from parental care. Separation at an interim stage must be necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand it, and the likely duration and consequences must be proportionate to the risks of leaving the child at home. The court must compare the risks of harm from removal with those of remaining, consider positive evidence about existing care, and scrutinise safeguards and resources that could avoid separation. The least interventionist order consistent with safety and welfare should be chosen. Unless immediate removal is required, an unsuccessful party should have a short opportunity to seek appellate review.

The proceedings concerned twin girls aged eight and their six-year-old sister. After periods in both parents’ care, the children were living with their father under arrangements permitting extensive unsupervised contact with their mother. The local authority later sought interim care orders and foster placement after the parents allowed overnight contact without its approval and the children were said to have been told not to disclose it.

On 26 July 2023, HH Judge Oliver made interim care orders removing the children from their father. The father appealed, supported by the mother and the children’s guardian. The central issue was whether immediate removal was necessary and proportionate, or whether safeguards under interim supervision or care orders could manage the risks.

1. Appeal allowed. The Court of Appeal unanimously set aside the interim care orders and held that the children’s immediate removal from their father was unnecessary and disproportionate.
2. Under s.38(1) and s.38(2) of the Children Act 1989, an interim care or supervision order may be made only where there are reasonable grounds for thinking that the threshold circumstances in s.31(2) exist. Satisfaction of that threshold does not itself require removal. The principles summarised in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 require interim separation to be necessary and proportionate, with the child’s physical safety or psychological or emotional welfare demanding it and the likely consequences and duration being proportionate to the risks of non-separation. Re L-A (Children) [2009] EWCA Civ 822 makes clear that an immediate risk of serious harm is not the test.
3. The judge’s welfare analysis omitted important evidence that the children were thriving in their father’s care, that there were no safeguarding concerns about that placement, and that he had capacity, with support, to meet their needs. The judgment also failed to compare the risk of emotional harm if the children were removed with the risk if they remained with their father.
4. The court was required to scrutinise available safeguards and adopt the least interventionist course consistent with safety and welfare, in accordance with Re H-W (Children) [2022] UKSC 17. A clear order defining contact, supported by a written agreement signed by both parents, could have managed the perceived risk without removal. It was unnecessary to determine whether the local authority’s refusal to support continued placement under an interim care order was determinative.
5. The refusal of a short stay pending an application to the Court of Appeal was also wrong in principle. Under Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070, unless immediate removal is required for the child’s safety and welfare, an unsuccessful party should have an opportunity to seek urgent appellate review.
6. The interim care order was set aside. By agreement, the children remained in local-authority care under s.20 of the Children Act 1989 until 6.00pm on 11 October 2023, after which they were subject to an interim supervision order until conclusion of the proceedings or further order. Updated care plans and a written agreement were ordered, with an urgent family court hearing and no order for costs save detailed assessment of legal-aid costs.

• Court of Appeal (Civil Division): Permission to appeal was granted by Moylan LJ on 22 September 2023. On 3 November 2023, the appeal was allowed and the interim care order was set aside: [2023] EWCA Civ 1266.
• Central Family Court: On 26 July 2023, HH Judge Oliver made interim care orders removing the three children from their father and refused permission to appeal and a stay pending an application to the Court of Appeal.