Re H (A Child) (Interim Care Order)

Care order – Interim order – Whether sufficient evidence to justify removal of child at interim stage – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 6 and 8.

The mother and father lived together with their child and its siblings. Three of the siblings had been taken into care and the local authority obtained an interim care order in respect of the child. The family was housed in a residential unit where the father had assaulted the mother on two occasions. They were then housed in a second residential unit where the local authority progressed to consider rehabilitation into the community. After an incident when the mother left the father and spent 24 hours in a refuge before returning to him, the local authority abandoned their plans for rehabilitation. The father was assessed and found unsuitable for an anger management course. The mother obtained counselling from a local charity whose doctor recommended that she needed cognitive behavioural therapy. However, the local authority failed to arrange suitable therapy for her. The residential unit where the family lived was to be closed and the authority sought an order sanctioning the child’s removal from his family when that closure took place. The judge granted the order sought by the authority. The judge ruled that the child would be subject to an interim care order. The mother and father appealed against the judge’s ruling on the ground, inter alia, that there was insufficient evidence to justify the removal of the child at the interim stage because there was no real risk as opposed to a speculative risk towards him.

Held – The rights of parents protected by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) required the judge in the instant case to abstain from premature determination of the case unless the welfare of the child demanded it. Since removal from the lifelong parents to foster parents would have been traumatic for the child, and open to further upset if the parents’ case ultimately succeeded, that separation was only to be contemplated if the child’s safety demanded immediate separation. The local authority’s reaction to the events of the mother leaving the father to seek refuge had been disproportionate, and it had failed to address the mother’s therapeutic needs. Furthermore, the doctor’s advice had been allowed to exceed that permitted at interim stage. Moreover, there had been little evidence of risk that the child would be caught in the crossfire of the parents’ conflict and that he

would be subjected to his father’s anger. Therefore, it had not been appropriate to make an order for the child’s removal and the appeal would be allowed.

The mother appealed with permission of the Court of Appeal against the judgment of Judge Corrie, dated 2 December 2002, whereby he sanctioned her child’s removal from her care and from that of the father upon the closure of the residential unit where they lived. The facts are set out in the judgment of Thorpe LJ.

Vanessa Meachin for the appellant.

Gregory Rogers for the father.

Bruce Coleman for the local authority.

Andrew Neaves for the guardian ad litem.

[1] This appeal concerns a little boy named B, who was born on 5 May 2001. He has lived throughout his life with his parents: his mother, who is 39 years of age, and his father, who is 31. His mother has three older children all of whom have been taken into care. A fifth child is due in late April or early May 2003. The two youngest and the expected child are all the children of the second respondent father.

[2] In the light of the history the local authority, quite understandably, obtained an interim care order in relation to B within ten days of his birth. However, the family of three was united at a specialist residential unit called WH where they all lived between May and September 2001. There is some evidence in a subsequent remark made by the mother that on two occasions during that stay, sometime between May and August, she was assaulted by the father. That is the only evidence of those incidents, and even by her description the assaults seemed to have been relatively minor occurrences.

[3] In September 2001 the family were transferred to an alternative residential unit called MH and there they have remained to the present day.

[4] The local authority were, in the light of the history, ambivalent as to B’s future and they sensibly pursued a policy of twin-tracking until progress reports from MH encouraged them to the optimistic view that these two could provide good enough parenting for B. So by 2 July the local authority had replaced the policy of twin-tracking with a policy of rehabilitation to the parents in the community.

[5] The plan lurched off the rails later that month when, during a fraught week between 19 and 26 July, the mother described to one of the workers at MH her sense of despair at her relationship with the father and her determination to escape from his unreasonable controlling personality. She did leave for a women’s refuge, but within 24 hours she was back again and the relationship crisis was seemingly overcome. However, it led the local authority to reverse their proposals for B’s future. At a planning meeting on 7

August they decided to seek judicial sanction for B’s immediate removal from his parents.

[6] There was a fixture in the appropriate court, namely, the C County Court for 28, 29 and 30 August. But for the shock of the events of 19 July that would no doubt have been a useful vehicle to have carried the case forward to rehabilitation; but given the reversal of the local authority’s care planning it was impossible for them to present their full case at the fixture. In any event on 25 August the parties were informed by the county court that the court could no longer meet the fixture. The most that could be allowed the case was half an hour. Furthermore, we have been told this morning that the parties were informed that the next available three-day fixture would be sometime in April 2003. That is a profoundly worrying failure of the family justice system to meet the needs of the case and thus the needs of the child within...