C (A child) (Interim Separation: Residential Care), Re

On an application to separate a child from parents during interim care proceedings, the court must apply the high standard of justification required by the interference with Article 8 rights. Separation must be necessary and proportionate to the risks identified. That test does not replace the court’s duty to evaluate and balance all relevant welfare factors and available options. The court must consider the child’s welfare as paramount, including the welfare checklist where applicable, and must assess the evidence coherently. A judge must not treat the five propositions in Re C 2019 as a freestanding or exhaustive test which makes the application fail merely because the child remains in a structured residential placement. The appeal was allowed because the judge had not undertaken the required welfare analysis.

An infant was subject to an interim care order under section 38 of the Children Act 1989 and was living with both parents in a residential unit under intensive supervision. The local authority applied to separate the child from her parents and end the placement. The Family Court sitting at Medway, in case ME25C50105, refused the application on 16 September 2025 after a short hearing, treating the five propositions in Re C 2019 as decisive and placing weight on the fact that the residential unit had not required the parents to leave.

The local authority appealed, alleging inadequate consideration of the evidence, failure to analyse the welfare options, and insufficient consideration of emotional and psychological harm. The central issue was whether the judge had properly assessed whether separation was necessary and proportionate in light of the child’s welfare.

1. Appeal allowed and application remitted. The local authority’s application was remitted for rehearing by a different circuit judge.
2. The court reaffirmed that interim separation engages the parents’ and child’s Article 8 rights. Separation is justified only where the high standard of justification is met and separation is necessary and proportionate to the risks that would arise if it did not occur. The court must identify and weigh the available options and the balance of harm.
3. The propositions in Re C 2019 provide an appropriately demanding framework, but they do not relieve the court of its duty to undertake a welfare-focused balancing exercise. The court must evaluate the factors relevant to the child’s welfare, with welfare paramount under section 1 of the Children Act 1989.
4. The judge had not conducted the anxious, coherent assessment required by Re C 2020. He had not properly considered the local authority’s evidence, including the social work statement and the red areas of the final parenting assessment. He had not meaningfully analysed the welfare checklist, including the child’s emotional needs and relevant background, or the possible psychological and emotional harm caused by continuing poor care.
5. The judge had treated the absence of a demand by the residential unit that the parents leave as effectively decisive. That approach wrongly made the application depend on the propositions in Re C 2019 as a rigid test and diverted attention from the wider welfare analysis. The court did not itself determine whether separation should occur because the post-hearing evidence was incomplete and the welfare decision required rehearing.
6. The local authority’s separate argument that the authorised assessment had ended when the final report was produced was not decided. It could be raised in the Family Court or on the remitted rehearing.

• Court of Appeal (Civil Division): appeal from the Family Court sitting at Medway allowed. The local authority’s application to separate the child from her parents was remitted for rehearing by another circuit judge.
• Family Court sitting at Medway: HHJ Thomas refused the local authority’s application on 16 September 2025 in case ME25C50105.