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Council wins appeal over order discharging interim care orders

Herefordshire Council has won an appeal from an order discharging interim care orders in relation to girls aged nine and seven.

The background to the case was that the children's parents were separated. Their father is Mr S. In 2018, their mother started to live together with Mr B, who had the care of two children of his own and one stepchild. One of Mr B's children is T, a girl aged 8.

On 4 November 2019, she went to school with significant bruising and other marks to her face and body. The explanation for the injuries was disputed. The local authority alleged that they were caused by the mother or by Mr B. They deny this and say that the injuries were inflicted by T herself.

The five children were removed by the police on 9 November. E and S were placed together in foster care. The local authority issued proceedings on 5 December.

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On 23 December, interim care orders (with the children remaining in foster care) were made by His Honour Judge Vavrecka without opposition.

The matter was listed for a fact-finding hearing in April 2020, but that had to be adjourned because of the pandemic. It was re-fixed for Wednesday 8 July 2020 before His Honour Judge Clarke, with a time estimate of 7 or 8 days.

The hearing duly started however transcripts of the children's interviews and the parents' interviews were outstanding and not provided as promised due to an error on the part of the local authority.

These transcripts were considered to be essential and so HHJ Clarke granted an application by the local authority for an adjournment.

On 16 July, an application was made on behalf of the mother for the discharge of the interim care orders to allow the children to return home. It was said that there were no welfare concerns about these children and that the evidence was that they had been well cared for. It was argued that continued placement in foster care was not appropriate. The application was opposed by the local authority, Mr S, and the Children's Guardian.

By the time the judge gave his decision, a date for a resumption of the hearing had not been identified. The possibilities seemed to range from mid-August to November 2020, although the judge referred to resumption being in November at best, with a welfare hearing to follow.

The judge gave an ex tempore judgement in which he granted the mother's application. He noted that:

  • the proceedings were supposed to be concluded within 26 weeks and that this would have been expected when the interim care orders were made;
  • the hearing had already been put back from April and now it was being put back even further, with the earliest possible date for resumption being November;
  • even if the mother was found to be responsible for T's injuries, the consequence would not necessarily be that E and S could not return to her care;
  • the evidence had not changed significantly since the original order was made.

The judge said the question was whether the threshold under s. 38 Children Act 1989 was still met and whether continued separation was necessary and proportionate.

He recorded that the local authority and the Guardian opposed the mother's application, the Guardian arguing that the test for removal had been met before and that the passage of time had not diminished the risk to the children.

HHJ Clarke remarked: "Hindsight is a wonderful thing. If at the initial ICO, it had been known that to obtain a decision in relation to the facts alone would take so long, I wonder whether the decision would have been the same but that decision is the background to this matter. At the time that decision was made, anticipation of the court was that the case would be concluded within 26 weeks. …

“I have to balance on a proportionality basis, an extended period of continued removal from M's care against the likelihood of harm."

He then referred to a teacher's evidence and the fact that the school summer holidays were starting. He continued: "But when I consider the proportionality exercise, I'm satisfied that the risk to these children presented by the Mother, even if identified as perpetrator to T, in circumstances where there were never any previous concerns regarding the Mother and currently no specific other identified concerns regarding the Mother, when weighed against potential ongoing harm to children of separation and applying the test for interim removal, would identify to me that continued separation from the Mother is not appropriate."

Before the Court of Appeal, counsel for the local authority argued that HHJ Clarke’s decision to discharge the orders was premature when the fact-finding process was incomplete and there had been no parenting assessments.

It was also said that the judge did not consider the gravity of the allegations, and he could not and did not balance the risks. The hypothetical question of whether removal would have been sanctioned if the length of separation had been known at the outset, was the wrong question, counsel said.

She also noted that HHJ Clarke did not have any evidence that the children were suffering harm in foster care. She submitted that delay had no impact on the assessment of risk and that there had been no new evidence or change of circumstances to alter the risk assessment.

The council’s submissions were supported by the children’s father. For the Children’s Guardian, it was argued that the judge’s decision was “manifestly wrong”.

Counsel for the mother submitted that the Court of Appeal should not interfere with a permissible and properly reasoned interim decision by a judge who had the measure of the case. The children, who had not themselves come to harm, had already been away from their mother for 8 months.

The judge had considered and balanced a range of factors in the course of oral submissions and then in his judgment, it was suggested.

In H-B-S (Children: Discharge of Interim Care Order) [2020] EWCA Civ 1027 the Court of Appeal allowed Herefordshire’s appeal.

Lord Justice Peter Jackson said:

(1) There is no doubt that the court has the power to review the continuation of interim measures that it has put in place and that it may decide to exercise that power where the balance of the evidence significantly changes during the proceedings. This may lead to the removal of children previously at home or the return of children previously in foster care. If the court considers it appropriate to revisit its previous decision, the essential question is likely to be whether the further information changes its original assessment of risk. Delay in making a decision is presumed to be detrimental to children but where children have been removed from home for their own protection it is not on its own likely to affect the risk assessment.

(2) In this case, the judge was wrong to have disturbed the arrangements in the middle of the fact finding process. The children had rightly been placed in foster care and there had been no significant change in the evidence. The judge was not in a position to assess the risk of returning the children to their mother and he did not in fact attempt to do so. He no doubt considered the factors set out in [counsel for the mother's] list, but he was not yet in a position to assess their weight or to balance them without an understanding of how T's injuries had come about.

(3) The only factor that might have been relevant to risk was the separation of the mother from Mr B, but that is not a factor on which the judge relied and it could not have tipped the balance at this stage of the proceedings.

(4) I accept that when the judge made this decision the options looked starker then they do now. I doubt whether he would have reversed the arrangements for the children if he had known that the hearing would be resuming in a month. Leaving aside my doubts about whether a decision of this kind can properly be based on delay, it was at least necessary for the court to establish what the delay was likely to be.

Peter Jackson LJ, with whom Lord Justice Moylan agreed, therefore allowed the appeal and set aside paragraph 1 of the judge's order so that the interim care orders remain in effect.

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