Interim care orders, parental alienation and procedural fairness

Francesca Massarella looks at a recent appeal against an interim care order in a case of potential alienation.

In AK v A London Borough Council, RS & Z (by his children’s guardian) [2020] EWCA Civ 1755 (Lord Justice Floyd, Lord Justice Baker & Lord Justice Arnold) Z, aged 15, was the youngest of two children of parents who separated in 2016. Both Z and his older brother, D, aged 19, were on the autistic spectrum. Throughout a long period of private law proceedings concerning the two boys, they have lived with their father and had only limited contact with their mother, who remained in the family home. A child arrangements order directing shared care was previously made, which involved the boys spending alternate months with each parent. However, the order never took effect and Z and D continued to live with their father, having limited contact with their mother. The mother applied for a renewal of the order and in the course of those proceedings, a report from a child psychologist was directed. This report concluded that Z was suffering significant harm due to the care provided by his parents and was alienated from his mother. The children’s guardian submitted that a supervision order was required and public law proceedings ought to be issued.

Another psychological report was obtained, which concluded that Z was ‘extensively alienated from his mother’ and whilst the father denied it, it was likely that he was trying to ‘obstruct the relationship.’ Parenting assessments were subsequently carried out by an independent social worker, who found that the father remained ‘fixated on historical issues about the marital relationship’ and could not separate this from the well-being of his child.

The local authority then made an application for an interim care order, which was granted by the court on the grounds that there were concerns about Z’s relationship with his father, which was affecting his education as a result. Z was subsequently removed from his father’s care and placed with foster carers.

The father appealed in the present hearing, asserting that the interim care order was wrong, procedurally irregular and caused injustice. The grounds on which he relied for this were: (i) the judge failed to conclude all live evidence before deciding whether to make an interim care order, (ii) the process infringed the father’s right to a fair trial, (iii) the judge failed to make findings of fact, (iv) the judge made no or no sufficient enquiries as to the capacity of Z to give instructions and be separately represented. Therefore, the father submitted that these irregularities rendered the decision unjust and breached Articles 6 and 8.

On behalf of the local authority, it was submitted that there was enough evidence before the court for the judge to properly consider proportionality and the balance of harm test in making her decision. Furthermore, the interim care order was not unfair because the interim threshold for making an order was applied and met. Regarding the capacity of Z, the local authority contended that the court was entitled to rely on the assessment made by Z’s solicitor. The mother adopted the local authority’s submissions.

On behalf of the guardian, it was considered that the judge clearly placed great weight on the proportionality of the proposed removal and concluded that it was proportionate. The balance of harm test was met because the guardian argued that there was more of an immediate risk of significant harm to Z if he stayed with his father than if he was removed. The guardian also submitted that the court had no obligations to make any findings of fact at that preliminary stage.

The court concluded that the appeal should be allowed because whilst the decision was not wrong, there were procedural irregularities. Firstly, it was decided that there were irregularities in the consideration of Z’s competence to give instructions. S.31 Children Act applied, which implicitly necessitates instructions be taken directly from the guardian unless the child has sufficient understanding to give instructions themselves. The court referenced the case of Re W (A child) [2016] EWCA Civ 1051 and concluded that Black LJ’s judgment in that case was relevant because it dictated that what ‘sufficient understanding’ means will be fact-sensitive. Applied to the present case, the court concluded that more steps should have been taken to facilitate Z’s participation in proceedings.

Secondly, fairness required the father to have been given the opportunity to give evidence prior to any decision to remove Z from his care. Thirdly, the interim care order was wrongly made on the basis of a care plan which involved Z’s placement with foster carers with a long-term view to placing him with his mother. At paragraph 50, the court noted that ‘there remain real doubts as to whether Z will ever be reconciled with his mother’ and therefore the care plan should not have been approved by the court.

The court therefore concluded that the interim care order be set aside and the application for such an order be reheard by a different judge in the interests of fairness. A short-term interim care order was made to last only until the next hearing and to be on the basis of a revised interim care plan filed by the local authority. It was asserted that it was not in Z’s interests to return to his father because there was a ‘real possibility that he may be removed again following the rehearing.’

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.