Re B (Children) (Interim Care Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Aikens,Lord Justice Thorpe |
| Judgment Date | 30 March 2010 |
| Neutral Citation | [2010] EWCA Civ 324 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2010 |
| Docket Number | Case No: B4/2010/0567 |
[2010] EWCA Civ 324
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Cleary, sitting in The Coventry County Court 5th March 2010
Before: Lord Justice Thorpe
Lord Justice Wall
and
Lord Justice Aikens
Case No: B4/2010/0567
Aiden Vine (instructed by Blakemores—Solicitors) for the Appellant
Rebecca Franklin (instructed by Warwickshire County Council) for the 1st Respondent
Davinder Dhaliwal (instructed by Maurice Andrews – Solicitors) for the 2 nd Respondent
John Vater (instructed by Johnson & Gaunt – Solicitors) for the Children and the Guardian
Hearing date: 11th March 2010
Lord Justice Wall:
We heard this matter on 11 March 2010, and announced our decision at the conclusion of the argument. We granted permission to appeal, but dismissed the appeal. The stay, which I had ordered on 9 March thus ceased to have effect. We ordered the assessment of the costs of those parties who were publicly funded. We reserved our reasons, and this judgment will explain why I take the view that the orders we made were the right ones. As the case is ongoing, I would propose the imposition of reporting restrictions.
MB is the mother of four children by two different fathers. We are only indirectly concerned with the two eldest, NH and IH. The former is a girl who will be aged 17 in April: the latter a boy who is 14 and a half. Their father plays no part in the proceedings.
The two children with whom we are directly concerned are KB a girl aged 11 and EB, a boy, who will be 10 in June of this year. On 5 March 2010, His Honour Judge Cleary, sitting in the Coventry County Court made interim care orders in relation to KB and EB who had been living with their maternal aunt since 15 February 2010, and before that with their parents, MB and AB and their siblings NH and IH..
It was common ground that the placement of KB and EB with their aunt would have to come to an end in any event, and the contest was whether KB and EB should return to live with their mother, or whether they should live for the time being with foster parents under interim care orders, whilst an assessment was made of their mother's capacity safely to care for them and, in particular, whether she could protect them (and herself) from their father AB, from whom the mother was separated.
NH and IH, who, at the time of the hearing before the judge were living with their maternal grandmother, had made it clear to the children's guardian that they intended voting with their feet, and that they would return to live with their mother. Given NH's age, the local authority, which had brought care proceedings in relation to all four children, applied to the judge for permission to withdraw its application for a care order in relation to her, an application which the judge granted.
In relation to IH, the position was not quite so straightforward. The local authority's original plan had been to move him to live with his aunt (in place of KB and EB) but it became clear to the local authority (following a visit to IH by the guardian) that, in the judge's phrase, “any attempt to keep (him) from his mother would be, if not impossible, certainly inappropriate”; and the local authority “after some observable confusion” accepted that it would reconsider its plan in relation to IH having, as the judge put it, “at one stage early this morning and perhaps a little over-hastily, indicated that it would in fact withdraw proceedings altogether”.
In the event, whilst the position is both unclear and unsatisfactory, we are not directly concerned with IH, in relation to whom the judge made a residence order in favour of the mother, combined with a supervision order in favour of the local authority. It is plain, therefore, that IH will, like NH, return to live with MB.
The judge had no difficulty in deciding that the threshold criteria under section 38(2) of the Children Act 1989 were satisfied in relation to both KB and EB: indeed, they were conceded by MB. It is, however, in my judgment impossible to disentangle those criteria from the question of whether or not it was appropriate for the judge to make interim care orders, which undoubtedly had the effect of separating the children from their mother.
In an extempore judgment given late on the Friday afternoon, the judge identified the criteria in the citation from his judgment which follows. I should say that at the hearing of the appeal, we only had a note of the judgment, albeit one the judge had both commented upon and approved. We have now been supplied with a transcript, which the judge has also approved, and I propose to take my citations from it. This is what he said about the threshold:
22. The threshold can be summarised thus. (MB) is unable, it is reported, to prioritise her children's needs before her own and has not always cooperated with social services. There has been persistent domestic violence between the parents and the children have been constant witnesses to these incidents; and hitherto neither parent appears to have understood the seriousness of the violence and the impact of this violence upon the children. (MB) is, it is said, unable to protect the children from their father or from witnessing the violence between them, and although she has stated to social services on a number of occasions in the past that she wishes to leave him because of her fear of him she has not done so. For his part (AB) has been very aggressive and confrontational with social services generally, throughout professional involvement. Further, father has struck the children and has, it is reported and asserted, struck (EB) in particular and with a belt. His threats to (MB) are reported by her. She has included very serious threats and terrifying ones which include a threat of assault with an axe, and indeed the children have seen him brandishing an axe from time to time. Those are just some of the allegations and although I do not at this stage make findings particularly against the father it is clear from a perfectly frank admission by the mother in the position statement lodged very helpfully by her counsel that the threshold criteria certainly are met for the purpose of this application.
23. In brutally short summary, and I hope I can be forgiven for this, the issue before this court is not whether there should be an interim care order but whether within the terms of that order the younger two children should be kept from the family home while assessments are carried out, assessments being essentially of a psychological nature to assess whether, with clinical help, the mother genuinely can disengage herself from this father, and indeed whether this father can no doubt again with professional help moderate his behaviour and eschew violence and abuse both towards the mother of his children and indeed of his stepchildren and the children themselves.
In my judgment, this question raised by the appeal is very simple. Where, in the circumstances I have just set out, the local authority's position is that the necessary assessment of a mother's capacity to care for and protect her children cannot safely be carried out whilst the children are living with her, is the concept of an interim care order sufficiently flexible to enable a judge to remove children temporarily from their mother's care in order for the assessment to be made?
Put in this way, the answer seems to me obvious. The remedy is available, and on the facts of this case the judge was plainly right to avail himself of it.
This is the second time in recent months that this court has had to address the subject of interim care orders. In Re B (a child) (interim care order) [2009] EWCA Civ 1254, [2010] 1 FCR 114, I took the opportunity to remind the profession of what was said about interim orders in a leading textbook and in other cases. In paragraph 52 of my judgment I cited paragraph 40.40 of the first volume of Rayden & Jackson on Divorce and Family Matters 18 th edition, 2005 where I found the following:—
“The making of an interim care order is an essentially impartial step which effectively maintains the status quo and does not give a local authority in whose favour it is granted a tactical advantage over other parties; the regime of an interim care order should operate as a tightly run procedure closely monitored by the court and affording all parties the opportunity of frequent reviews as events unfold”.
I added:—
53 For these propositions, three authorities are cited, two of which are decisions of this court Re G (Minors) (Interim Care Order) [1993] 2 FLR 839 and Re M (a minor)(Appeal: interim order)(No 1) [1994] 1 FLR 54.
As Judge Cleary recognised (see paragraph 45 et seq. of his judgment) the question which the judge who takes the final hearing in the instant case will have to decide is whether or not these parents together, or the mother on her own (if she elects to and can live without the father) can safely parent the two children with whom we are concerned. In order to assist the judge in deciding that question, the local authority wishes to make an assessment of the mother's ability to maintain a life style independent of the children's father and whether or not she has the capacity to protect and care for them. Its case – for which there was an abundance of evidence—was that this exercise could only be safely attempted if the two children were not...
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