Court of Appeal allows appeal by father over interim care order

The Court of Appeal has allowed a father’s appeal against interim care orders made in respect of his three children.

In J & Ors, Re (Children: Interim Removal) [2023] EWCA, Lord Justice Baker concluded that the judge failed to refer to the “very positive evidence” about the care being provided to the children by their father, and provided “no analysis of the risk of the children suffering emotional harm if removed from their father's care”.

The appeal concerned twin girls and their younger sister.

Outlining the background to the case, Lord Justice Baker noted that the children’s mother had had long-term difficulties with substance misuse and a range of mental health problems.

The family was referred to social services on a number of occasions because of “concerns about domestic abuse between the parents and the children's exposure to drugs”, he added.

In 2019, the parents separated but remained in close contact.

In January 2022, the mother was arrested for drink-driving and it was discovered she had left the children alone overnight. As a result, she was charged with a number of offences, including child neglect.

Following this, the children were placed with the father but returned to the mother after a few weeks.

A parenting assessment of the father concluded that, with support, he had the capacity to meet the long-term needs of all three children if they were placed in his care.

The children remained with their mother for several months after the start of proceedings. On 2 May 2023, however, following a referral from the ambulance service about concerns about the mother's health, the children were placed back with their father.

On 25 May 2023, a hearing took place before District Judge Orchover. She refused the mother's application for the return of the children and instead made a child arrangements order providing that the children should live with the father until the next hearing or further order.

At a contact review meeting with the local authority in May 2023, it was agreed that the mother should have unsupervised contact with the children on three days a week.

The judge noted that at a core group meeting on the same day, it was recorded that:

"the children … are thriving in [the father's] care and there are no concerns about the level of care being afforded to them."

Over the next few weeks, the mother sent a series of emails following contact visits complaining that the father was ill-treating and physically abusing the children. These allegations were denied by the father.

According to a statement filed in the proceedings dated 6 June, the social worker spoke to the children “who said nothing to corroborate these allegations”, said Lord Justice Baker.

Ten days later, the local authority filed a C2 application "inviting the court to intervene and determine the mother's contact arrangements". The application was listed for hearing on 20 July before HH Judge Oliver.

A further statement was filed by the social worker saying that, as a result of growing concerns about the children's emotional wellbeing following contact, the local authority had concluded that the contact "requires supervision at the moment in order to reduce the risk to the children and destabilising their care arrangements".

According to the social worker, the father had been supportive of this proposal. However, on 4 July, the father informed the social worker that he had allowed the children to stay with the mother overnight. “She advised him that the local authority did not agree to overnight contact and that he and the mother needed to stick to the plan”, said Lord Justice Baker.

On the following Monday, the children told the social worker that they had slept at their mother's house over the weekend, that she had taken them to school that morning and would be collecting them at the end of the day, and that she had told them not to tell the social worker about it.

On 17 July, the local authority filed a further statement from the social worker stating that the local authority now proposed that the children should be placed in foster care under interim care orders.

The hearing before Judge Oliver on 26 July proceeded on the basis of written evidence and oral submissions, after which he delivered an ex-tempore judgment.

Judge Oliver concluded: “I am entirely satisfied the children, if they remain where they are and nothing changes, and I cannot see any basis upon it will change, will continue to be at risk of immediate harm and that harm being emotional.

“Therefore, I grant the local authority application for interim care orders in relation to all three children."

The judge refused an application by the father for permission to appeal and refused an application by both parents for a stay of the order pending an application to the Court of Appeal.

On 3 August, the father's solicitors filed a notice of appeal. Permission to appeal was granted by Moylan LJ on 22 September and the appeal listed for hearing on 10 October.

Outlining the grounds of appeal, Lord Justice Baker said that in summary, it was submitted that the judge:

1. misled himself about certain factual matters;
2. failed to conduct a proper welfare checklist analysis;
3. elevated what he wrongly called a "risk of emotional harm" beyond what is intended by the interim removal harm test with the result that any balance of harm test he conducted was flawed;
4. failed to conduct a proportionality evaluation;
5. failed to give any or any sufficient reasons why the children could not safely remain at home under an interim supervision order of interim care order, with appropriate additional safeguards;
6. wrongly took the local authority's refusal to agree to the children remaining at home under an interim care order as determinative of that option.

Counsel for the father argued, first, that the judge had failed to identify how the high hurdle for removing children at an interim stage in care proceedings had been crossed.

She submitted that although HHJ Oliver had been referred to the applicable legal principles in written submissions, they were not cited in the judgment and there was nothing in the judgment to show that he had applied them when reaching his decision.

Secondly, she pointed to a number of factual errors in the judgment which, she submitted, had “led the judge astray in reaching his decision”.

In particular, she cited the reference in paragraph 15 to the children witnessing physical violence, pointing out that there had been no suggestion of violence since the start of the proceedings.

The appeal was supported by the mother and also, at the hearing, by the children's guardian.

Counsel for the local authority accepted that the father's care of the children had been good, but submitted that for the local authority and the judge the issue had been the parents' toxic relationship, which was “clearly established on the historic evidence, and its adverse impact on the children”.

The failure to comply with the agreed plan for contact had been the tipping point because it demonstrated that the father was not at that stage able to act in the children's best interests, it was submitted.

Discussing the appeal, Lord Justice Baker said: “This Court is fully aware that judges sitting at first instance in the family court are under great pressures of time and resources. But making all appropriate allowances, I concluded that the judge failed to apply the test for immediate removal and that, had he done so, he would have reached the opposite conclusion.”

He added that it was true that the judge carried out a welfare analysis of the sort with which the Court should “only interfere when there is a clear justification for doing so”.

However, Lord Justice Baker added that in this case there were “clear reasons for interfering”, noting:

“First, nowhere in the judgment does the judge refer to the very positive evidence about the care being provided to the children by their father. […] The positive evidence about the father's care of the children was plainly an important factor in the assessment of whether the children's welfare and safety required their immediate removal but it did not feature in the judge's welfare analysis.

“Secondly, the judgment contains no analysis of the risk of the children suffering emotional harm if removed from their father's care. […] As they had spent their entire lives to date in the care of one or both of their parents, the suggestion that they would not suffer emotional harm if removed was plainly implausible. The question for the court was whether the risk of harm if removed was outweighed by the risk of harm if they remained with their father. That question was never addressed.

“Thirdly, in order to satisfy itself that the 'the length and likely consequences of the separation [were] a proportionate response to the risks that would arise if it did not occur', it was incumbent on the court to scrutinise the available resources that might remove the need for separation. As the Supreme Court acknowledged in Re H-W (Children), it is a 'longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order'. The intervention required here was to prevent the children having unauthorised contact with their mother. The question was whether removing them from their father was a necessary and proportionate course to meet that requirement.”

Lord Justice Baker concluded that had the judge taken into consideration the positive evidence about the quality of care being provided by the father, the risk of emotional harm if they were removed, and the fact that “the perceived risk of harm from unsupervised contact could be ameliorated by a court order defining contact supported by a written agreement signed by both parents”, he would have realised that the local authority's proposal was “unnecessary and disproportionate”.

He added: “Instead, he should have adopted the less interventionist course, either, if the local authority agreed, under an interim care order or, if they did not, by continuing the interim supervision order.”

Allowing the appeal, Lord Justice Baker ordered the interim care order to be set aside, and the children to be returned to the care of the father.

Finally, the Court of Appeal judge outlined a further point where the judge “fell into error”. He noted that his refusal to allow even a short stay of the order to enable the father to apply to the Court of appeal was “contrary to authority and wrong in principle.”

He added: “Even if the judge's view as to the risks to the children remaining at home was correct (which in my judgment it was not), they could never be described as so acute as to justify denying the father a short stay to apply to this Court.”

He noted that courts and practitioners must follow the course identified by Peter Jackson LJ in Re N.

“Unless the child's safety and welfare require their immediate removal, the court should always allow an unsuccessful party the opportunity to apply to the appellate court”, he concluded.

It was agreed that the children shall be the subject of an interim supervision order to [the local authority] until the conclusion of the proceedings or further order, and that the application shall be listed at the Central Family Court for an urgent FCMH, (not before HHJ Oliver).

Lady Justice Simler and Lady Justice Elizabeth Laing agreed.

Lottie Winson