B (A Child) (Interim separation)

An interim care order does not, by itself, justify removing a child from a parent. Interim separation requires a careful and rigorous analysis showing that it is necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand it, and the duration and likely consequences must be proportionate to the risks of leaving the child in the family. The court must examine available support and protective arrangements that might avoid separation. In a finely balanced case, it must engage with the positive features of a proposed parental placement, explain why those features and safeguards are inadequate, and give reasons for rejecting a contrary guardian’s recommendation. Failure to conduct that analysis is an error of law. The appellate court may remit the application for rehearing where disputed post-hearing evidence bears on the interim decision.

The children’s guardian appealed on behalf of six-year-old B against an interim care order made by the Central Family Court on 29 May 2026. The order authorised B’s removal from his parents into foster care. The threshold for an interim order under the Children Act 1989 had previously been found satisfied, but the central issue was whether immediate separation was necessary and proportionate.

The father proposed that B should live with him under a child arrangements order, supported by the guardian and, on appeal, by the mother. The appeal challenged the recorder’s treatment of the father’s positive care, the alternative protective arrangements, and the competing risks. The Court of Appeal allowed the appeal and remitted the application for rehearing.

Appeal allowed and application remitted for rehearing. Baker LJ delivered the judgment, with Popplewell LJ and Elisabeth Laing LJ agreeing.

1. The governing principles were those summarised in Re C (A Child: Interim Separation) [2019] EWCA Civ 1998, derived particularly from Re L-A (Care: Chronic Neglect) [2009] EWCA Civ 822. Although an interim order is made on incomplete evidence, separation is justified only where it is necessary and proportionate. The child’s physical safety or psychological or emotional welfare must demand separation, and its length and likely consequences must be proportionate to the risks of not separating. The local authority must also identify all available resources that might remove the need for separation.
2. The recorder correctly referred to that framework but failed to apply it. In a case he described as finely balanced, he did not analyse the positive features of the father’s care, explain why they were insufficient to protect B, or give adequate reasons for rejecting the guardian’s proposal. He also failed to consider properly whether a child arrangements order, with a carefully defined schedule of contact and the resulting parental responsibility, could address the risks arising from the parents’ relationship.
3. The reference to the father’s proposal as untested and overly optimistic did not substitute for the required analysis. The judge had to compare rigorously the potential harm of foster placement with the risks of remaining in parental care, and consider whether support or other protective measures could mitigate those risks.
4. Although appellate courts ordinarily respect findings and evaluations of fact, the circumstances compelled intervention because the recorder had failed to apply the governing legal principles. The Court of Appeal remitted the application rather than deciding it itself because both sides sought to rely on disputed evidence arising after the original hearing, whose weight could fairly be assessed only at a fresh hearing.
5. Pending rehearing, B was to remain living with his father under a child arrangements order. Pursuant to section 12 of the Children Act 1989, a further order under section 4 was made conferring parental responsibility on the father. Contact with the mother was ordered on specified days in the community. Those interim arrangements expressed no view on the outcome of the rehearing.

• Court of Appeal (Civil Division) — Allowed the guardian’s appeal and remitted the local authority’s application for an interim care order for rehearing.
• Central Family Court — On 29 May 2026, the recorder made an interim care order authorising B’s removal from his parents into foster care.