Interim removal of children from their parents’ care — legal test re-enforced

The removal of a child from their parents is an extremely serious act with profound consequences for any parent and any child. It is not a step which should ever be taken without clear justification and compelling need.

However, a local authority has a duty to intervene in family life when there are concerns about the health, safety and welfare of a child. A local authority can apply to the court for an interim care order (ICO) if it considers the child is suffering, or is likely to suffer, significant harm (s.31 Children Act 1989) . If the court makes an ICO, the local authority share parental responsibility with the mother (and father if they are named on the birth certificate). This means the local authority have decision-making powers in respect of the child.

If an interim care order is made, it does not automatically follow that the child is removed from its parents’ care. The question is then “what circumstances justify an order sanctioning interim removal?”.

The case of C (A child) (Interim Separation) [2019] EWCA Civ 1998 sets out the legal test and the case of C (A Child) [2020] EWA Civ 257 shows how the test is to be applied, which is as follows:

1. An interim care order is made at a point when the evidence is incomplete. It should therefore only be made to regulate matters that cannot wait for the final hearing. An ICO is not intended to place any party in the proceedings at a disadvantage.
2. Removal of a child from a parent is an interference with their right to private family life. Removal at interim stage is a particularly sharp interference, even more so if the child is a baby because it will affect the formation and development of the parent-child bond.
3. An order for separation under an ICO will only be justified where it is both necessary and proportionate.
4. A plan for immediate separation will therefore only be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of separation are a proportionate response to the risks that would arise if it did not occur.
5. The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.

The test has recently been reinforced in the case of J, K & L (Children: interim removal) [2023] EWCA Civ 1266 . In this case, the district judge of first instance made an order that the children should be removed (in the interim) from their father’s care due to various matters, and, most importantly, because he allowed them to have overnight contact with their mother in breach of a previous order that mother’s contact was to be supervised.

The father appealed the decision and was successful. The appeal judge found that the district judge, in error, reached a decision considering “immediate risk of harm” only. The district judge did not consider the five-step test in Re C and did not refer to it in the judgment despite being prompted to the case in the case summary. The appeal judge found that had the district Judge applied the five-step test, they would have reached a different decision i.e. interim removal would not have been sanctioned.

The law is clear; if a local authority is asking a court to authorise the interim removal of a child from its parents’ care, it must prove the five-step test, with evidence. If the five-step test is not satisfied, and, the judge authorises the removal anyway, an appeal could follow.