Council persuades Court of Appeal to restore interim care order

The Court of Appeal has restored an interim care order after Northamptonshire County Council argued that a judge lifted it without properly considering the risks to ‘Child O’.

O is aged six and entered foster care in August 2018. In March HHJ Wicks replaced an existing interim care order with an interim supervision order, allowing O to return to his mother's care.

Northamptonshire immediately appealed and Peter Jackson LJ stayed the judge's order pending a hearing.

O is one of five children about whom there have been court applications stretching back to 2001 involving neglect, domestic violence and the mother’s use of drugs. O has some learning and behavioural difficulties.

A case conference had been fixed for 15 August, but six days earlier the mother was arrested for attempted murder of a man in her home.

O was taken into police protection and Northamptonshire began immediate care proceedings. The mother was later not charged.

Northamptonshire argued it was manifestly wrong for HHJ Wicks to return the child to his mother when an independent social work assessment was due, that he effectively ignored the incident in August and the views of professionals that the child was relatively settled.

Counsel for the mother argued that her not being charged - and so no longer facing a long prison sentence - was a relevant change of circumstances.

In O (A Child): Interim Care Order [2019] EWCA Civ 583 Peter Jackson LJ said HHJ Wicks did not balance the risks “in any meaningful way”.

He explained: “On one side of the scales, he completely left out of account the incident in the home in August. In the course of the argument he had acknowledged the significance of this event, but it did not find its way forward into his eventual reasoning.

“He appears to have treated the decision not to prosecute the mother as if it drew a line under that appalling event when in fact the factors that led to it happening in O's home in the first place plainly required the most careful assessment; nor, even if the judge had appreciated the need to take those risks into account, did he yet have any basis on which he could have made that assessment.”

There was no statement from the mother on the extent to which she and O were involved in the incident and “the absence of such a statement in a case now many months old is to my mind extraordinary”.

Views of social workers and O’s guardian that he was relatively happy and settled in foster care “are not referred to in the judgment; still less are reasons given for departing from them, as is required”.

Peter Jackson LJ said: “When forming what is inevitably a provisional view about a child's welfare at the interim stage, it is necessary to look at the evidence as a whole and to address the situation as it is.

“The judge I think led himself into error by posing the hypothetical question of whether he would have sanctioned O's removal had the August incident not taken place.

“The local authority credibly asserted that the incident arose from deep-rooted, longstanding risk factors within this family. By taking a compartmentalised approach, the judge deprived himself of a broad view of the real issues.”

The Court of Appeal judge added that HHJ Wicks had singled out as an issue the mother's capacity to meet O's needs but, having done so, he reached no conclusion about it.

"He had commissioned an independent social work report which was to become available shortly. The local authority and the guardian had major unresolved concerns about the mother's situation. Her capacity to meet O's needs was unassessed. It was I think unwise of the judge to pre-empt the outcome of the assessment, both as a matter of principle and also as a practical matter where a negative assessment from the independent social worker might mean that a decision for O to return home would have to be immediately reversed, described by Ms Meredith as a risk of yo-yoing," Peter Jackson LJ said.

"The issue of a change of circumstance does not appear to have received the necessary attention where the judge was considering whether or not to continue the interim care order."

HHJ Wicks' conclusions about the risk or absence of risk on either side of the scales seemed to have impermissibly pre-empted findings that ought to have awaited a final hearing and that realistically could only have been made at that point, the Court of Appeal judge added.

Mark Smulian