December 16, 2019

EVALUATING THE TEST FOR INTERIM SEPARATION POST C (A Child) (Interim Separation), Re [2019] EWCA Civ 1998

December 6th 2019

Removal of a child from their birth parents has been described by Sir James Mumby as being a ‘draconian measure’ but one that is undoubtedly necessary in certain cases to protect the child from suffering, or continuing to suffer, significant harm. The removal of a child from their parents, at an interim stage, only becomes  appropriate if there is an imminent risk of really serious harm i.e. the risk demands immediate separation (per Thorpe LJ in Re H (a child) (Interim Care Order) [2003] 1FCR 350)

When the Local Authority seek interim separation to protect the welfare of the child the court must strike a careful balance between the risk to the child of remaining at home and the rights of the child and the parents to remain together as a family. The welfare of the child remains at the forefront of any decision. This article focuses on the seemingly very high threshold for interim removal in light of a recent Court of Appeal decision.

Spotlight on the case
In the recent case of  C (A child) (Interim Separation), Re [2019] EWCA Civ 1998, the primary issue was whether an interim separation of a four month old child from his mother was justified; ie whether it was both necessary and proportionate. The young first time mother and her child had initially been accommodated with the maternal grandmother, then in two subsequent mother and baby foster placements. The local authority had consistently sought the child’s removal from the care of the Mother. Upon the breakdown of the second mother and baby foster placement the matter was restored to the court.

The court heard evidence from both the mother and the foster carer as to the reasons for the placement break down. The mother alleged the local authority had set her up to fail with the foster carer ruining her chances of remaining together with her child. In reaching a decision to approve the interim plan for separation the Judge placed emphasis on the mother’s deceit and found that she had herself deliberately tried to sabotage the placement. The Court of Appeal granted a stay on separation and the mother and child had been at a new mother and baby foster placement pending the appeal.

In the Court of Appeal, Peter Jackson LJ, concluded that the appeal must succeed. The Recorder directed himself correctly on the law. He was entitled to consider it would be unsafe for the child to be with his mother unsupervised in the community. He was aware the case had a particular history with the local authority repeatedly seeking to remove the child from the mother but being prevented from doing so. He fairly recorded the mother had shown good aspects to her parenting, that she was in a pressured situation, and that there were serious disadvantages to the child being removed from a parent to whom he was attached.

However, the Recorder did not then bring those matters into account when assessing the necessity and proportionality of separation. He effectively based his decision on the events of the previous 11 days. He was entitled to find the mother had repeatedly shown herself to be capable of being untruthful, immature and confrontational. That had to be set alongside all the factors in the case. The case concerned an isolated young mother and a first child. A final hearing was due to take place in 12 weeks’ time and it could not be foreseen whether the local authority’s application, which might well extend to a plan for adoption, would succeed or not.

Has the test for interim separation changed in light of this decision?

Within the judgment Peter Jackson LJ sets out a helpful summary of the law relating to interim separation as follows:

(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to 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 the 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 Recorder was criticised for not considering all the evidence and as another suitable placement was available (despite the fact that this was not supported by the Local Authority) this constituted a realistic alternative to interim removal.  Despite an objectively poor history since the child’s birth: the mother’s placement with her grandmother broke down, she was found to have deliberately sabotaged the second Mother and Baby placement and then placed blame on the local authority, she had been in contact with the father and had been consistently dishonest to professionals around this matter, the Court of Appeal considered that separation was not justified.

It would therefore certainly seem that this case has raised the bar in terms of when interim separation will be justified. Parents who may previously been advised that there was no realistic option for the court other than removing their child to foster care, may now be more likely to persuade a court that the Local Authority should locate a resource to enable them to remain together. This could encompass residential assessment placements, addiction rehabilitation units, family placements and foster placements.

What remains to be seen is how the courts will interpret ‘all available resources’. It is well known that there is a national shortage of parent and child foster placements and all residential units place a considerable financial burden on Local Authorities who are already struggling with budget constraints. If the courts are going to interpret Re C as requiring the Local Authority to source, or create, a safe interim placement for parent and child they are likely to be met by a response that such resources are simply not ‘available’ and thus the only safe placement is one which necessitates interim separation. Without a considerable increase in resources it seems inevitable that there will be much debate on the meaning of what is ‘available’ to avoid the need for separation. This is potentially another issue that will soon find itself back before the Court of Appeal.

Beth Bromley

Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Will Disputes