Court of Appeal allows appeal over decision by Family Court judge not to separate mother and baby

The Court of Appeal has allowed an appeal by a local authority over a judge’s decision not to separate a mother and a baby.

In P (A Child) (Interim Separation) [2021] EWCA Civ 499 Lord Justice Peter Jackson said that in the course of the hearing it emerged the appeal by an unnamed council would not be opposed by the mother M.

Child C was born in August 2020 and became the subject of an interim care order in the week of his birth.

He was placed in a mother and baby foster placement, an arrangement which broke down within days after which the court placed C in foster care.

In mid-October he was reunited with M in a residential assessment unit in which the mother made progress at first, but later staff intervention increased, having to “prompt M to meet C's basic care needs”.

A report referred to occasions when M displayed verbally threatening behaviour that required the staff to remove C from her care.

Matters worsened and M demanded C's return to her care. When this was refused, she attempted to harm herself and assaulted Mr T - with whom she was by then in a relationship.

The unit gave notice to terminate the placement because it could no longer ensure the safety of the child, family and staff and the local authority issued an urgent application to remove C to foster care.

But HHJ Greensmith concluded that separating C from M “would be traumatic both for M and child” and said he lacked evidence to decide whether separation was necessary.

Edis LJ heard an appeal by the local authority and C was placed in foster care in the interim.

Peter Jackson LJ said he had been told that M had since “reflected carefully on C's position and had come to the conclusion that it would not be in his interests for her to oppose the appeal”.

She said wanted the best outcome for C and had co-operated with a move into foster care and with supervised contact.

Peter Jackson LJ said: “It is in my view understandable that the judge should have been concerned about the importance of C's placement with his mother and the possible long-term consequences of him being separated from her.”

It had though been necessary to take a practical view of a situation in which the unit had decided the placement could not safely continue.

He added: “There was no proper basis on which the court could doubt that assessment by professionals who had been monitoring the situation for over five months, and it would not have been right to have put pressure on them to continue the placement.”

The local authority’s separation application had been “the obvious, and in my view only, solution to the position as it existed on the afternoon of the hearing”.

C will remain in foster care with frequent contact with M until a further hearing.

Mark Smulian