D (Children: Interim Care Order: Hair Strand Testing), Re

Under an interim care order, removal of a child from a parent or primary family carer is justified only where immediate separation is necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand it, and the likely consequences must be proportionate to the risk. Hair-strand results are one part of the evidence, not conclusive proof of drug exposure. Courts must consider testing limitations, time periods, underlying data, expert qualifications and the wider evidence. Where apparently alarming results require verification and prompt independent testing is available, a short adjournment may be required before removal. Advocates must present complete reports accurately, and the process must allow meaningful participation by carers and children. Interim removal may have lasting effects on family-placement options.

Four children were subject to interim care orders in favour of the local authority. Three girls had lived with their maternal grandmother and maternal uncle since August 2023. Following hair-strand reports indicating exposure to prescribed and illicit drugs, the Central Family Court authorised the girls’ removal to foster care at a short hearing on 26 March 2024. The mother appealed, challenging the interpretation of the testing evidence, the refusal to await further independent testing, and the assessment of the emotional consequences of removal. Further testing was admitted on appeal. The central issue was whether the evidence established the high standard of justification required for immediate separation from a family placement.

Outcome. Cobb J granted permission to appeal and allowed the appeal. Newey LJ agreed. Peter Jackson LJ also agreed and added observations. The order was set aside insofar as it authorised removal of the three girls; the interim care orders remained in place.

1. Interim separation. The principles stated in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 applied equally to removal from a grandmother or other primary family carer. Separation under an interim care order requires a high standard of justification. Immediate removal is permissible only where the child’s physical safety or psychological or emotional welfare demands it, and the length and likely consequences of separation are proportionate to the risk. The guidance in Re DE [2014] EWFC 6 also required removal following a changed care plan to occur on notice unless immediate safety and welfare required otherwise.
2. Hair-testing evidence. Hair-strand results must not be treated as determinative in isolation. The guidance in London Borough of Islington v M and another [2017] EWHC 364 (Fam) and Re H (A Child: Hair Strand Testing) [2017] EWFC 64; [2018] 1 FLR 762 required attention to testing limitations, the underlying data, qualifications in the reports and the broader evidential context. The first-instance judge had attached presumptive weight to summaries which did not accurately convey the data, had misunderstood the relevant testing period, and had failed to weigh the wider evidence sufficiently.
3. Further testing and proportionality. Independent retesting had been specifically recommended, the samples were five months old, and results could be obtained promptly. A short adjournment would not have materially affected the children. Removal before that investigation was completed was neither necessary nor proportionate. The later results materially undermined the apparent finding of serious continuing Class A drug exposure.
4. Fair process. The local authority should have given earlier and clearer notice of its radical change of plan. The grandmother should have had an effective opportunity to attend and obtain advice, the carers should have access to the relevant evidence, and the children’s wishes and feelings should have been obtained. Peter Jackson LJ additionally observed that the Guardian’s duties under section 41(2) of the Children Act 1989 and PD16A required advice to the court on the child’s wishes and the available options.

• Court of Appeal (Civil Division). On 10 May 2024, permission to appeal was granted, fresh evidence was admitted, and the appeal was allowed. The removal authorisation was set aside, while the interim care orders remained in force.
• Central Family Court. On 26 March 2024, HHJ Jacklin KC authorised the local authority to remove the three girls from their maternal grandmother and maternal uncle and place them in foster care.