Re M (children: interim care order)
| Jurisdiction | England & Wales |
| Judge | PETER JACKSON,ASPLIN LJJ |
| Judgment Date | 20 December 2018 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Interim care order – Identifying real or actual harm if children not removed – Balancing all elements – Analysis of why immediate removal necessary – Interim supervision order instead – Further applications possible once more evidence obtained.
The children’s parents separated in 2011, after which the children lived with the mother. They had no contact with the father from about 2012. In 2018, the children’s cousins were removed from their parents (the mother’s brother and his partner), having alleged that they had been subjected to harsh treatment amounting to cruelty and that the mother (their aunt) had participated. In May 2018 the mother was arrested for child cruelty. The local authority investigated and created child protection plans for the mother’s children, under the heading of emotional abuse. Also, in September 2018, the mother was convicted of cruelty to animals and was banned from keeping animals for 15 years. In October 2018 the local authority decided to start care proceedings in relation to the mother’s children; proceedings were issued in November 2018.
The threshold document set out various issues, including the events relating to the animal cruelty, domestic chores, removal of first teeth, the classification of two of the mother’s children as overweight and an allegation that the mother did not show the children emotional warmth. However, the core of the threshold allegations concerned the effect on the children of their exposure to the mother’s treatment of their cousins and the suggestion that the children had to some degree been involved in or had knowledge of the treatment of their cousins. The local authority filed evidence setting out the history, with a short statement explaining why it was seeking the children’s immediate removal. The local authority application was supported by the children’s guardian, who considered, notwithstanding many positive aspects of the children’s family life, including regular attendance at school, good academic progress, strong positive sibling relationships, good manners, good health care and a close and loving relationship with each other, that the children’s welfare demanded their removal to foster care.
The case was dealt with by the judge who was already dealing with the care proceedings concerning the children’s cousins. He noted the delay in issuing proceedings, agreeing with the guardian that the local authority should have taken action earlier. He identified the concerns about the treatment of the children’s cousins as the allegation capable of establishing an imminent and immediate risk of harm, describing the other concerns as ‘makeweight allegations’. He authorised the children’s removal to foster care, with supervised contact with the mother for 90 minutes twice a week. The mother sought permission to appeal, which was refused, as was a short stay. The children spent one night in foster care and then the mother applied successfully to the Court of Appeal for permission to appeal and a stay.
Held – (1) The removal of children into foster care under an interim care order in the course of proceedings was always a major step and could happen only where it was necessary. In this case, there were significant difficulties with the decision to remove the children to foster care immediately. Firstly, there had been no real explanation of the actual or feared harm that would be likely to come to the children if they were not immediately removed. Secondly, the judge, having fairly acknowledged the positives in the children’s presentation, had not, when making his decision, appeared to bring these into the balance. Nor had he brought forward his recognition of the serious nature of the order into the reckoning for these particular children, nor had he weighed up the effects upon them of immediate removal for an indefinite period of time from a home within which they considered themselves to be happy. Before making an order for such removal, the judge had been bound to set those matters against the matters that he considered as justifying removal. Finally, there had been no analysis of why immediate removal had been necessary and why the children could not remain at home until all the evidence in relation to them had been gathered, including any fact findings in relation to the mother’s treatment of the children’s cousins in the...
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