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Council wins appeal over refusal by judge of application for interim care order

A local authority has won an appeal over a Family Court judge’s refusal of its application for interim care orders for two children.

According to Lord Justice Peter Jackson, the central issue in K (Children) [2019] EWCA Civ 2264 was whether the judge, Her Honour Judge Reardon, was entitled to the view that she took about the level of risk to O, aged 8, and M, aged 6, at an interim stage of the proceedings.

The children had come to the country with their mother to join their father in April 2018. The appeal before the Court of Appeal related to the second set of care proceedings since then.

On 22 November 2018 the children were removed from home after the school reported injuries to O. He had been seriously assaulted by his mother in the home the previous day. The parents did not get medical attention and gave false accounts of how the injuries had been sustained, Lord Justice Peter Jackson said. The mother had suggested to O that he give a false account.

The family was then living in a different borough and that local authority took proceedings. The parents worked cooperatively with professionals to secure the return of the children. The children remained in foster care until 7 July 2019, when they were returned home.

In criminal proceedings, the mother pleaded guilty to ill-treatment of a child and causing actual bodily harm, and on 6 August 2019 she received a sentence of 12 months imprisonment, suspended for two years.

The first local authority filed its final evidence in the care proceedings on 18 September 2019 and on 11 October 2019 a supervision order was made and allocated to the present local authority, into whose area the family had moved.

The event that led to the present proceedings occurred about three weeks later on 5 November 2019. Lord Justice Peter Jackson said the mother attended a parents' evening at the children's school. When the time came for her to take them home, they could not be found. The mother went to wait in the playground, which was covered by CCTV. When the children later approached their mother, she immediately and without warning hit M on the face, knocking him several paces backwards. She then stood up and threw his bag or coat on the ground and walked out of the playground without looking back, leaving the children to pick up their belongings and run after her.

“The nature and suddenness of the assault on M can be seen by the reaction of O, who shrank back, and by the reaction of another child who was crossing the playground at the time,” Lord Justice Peter Jackson said.

The mother then took the children back into the school, and went to the safeguarding lead. She complained at the lack of support she was receiving and reported what had happened. “Fortunately, M does not appear to have suffered any injury," Lord Justice Peter Jackson said.

The children were again removed to foster care under police protection on the same day, the parents having refused to consent to them being accommodated. On 8 November, interim care orders were made.

On 18 November, M told the Guardian that 'It was a hard slap' and that 'I was crying'. To which, O said "No, it's a lie. It is only once. You [M] think it was a hard slap but it wasn't."

In her response to threshold, the mother said: "… after [the meeting with the teacher] both children ran away from her for about 10-15 minutes. During this time Mother sat outside the school building waiting for them to return as they had gone out of sight. She was extremely worried for their safety. She instructs that when they returned she used both hands to chastise M on his cheek for running away. Mother instructs that this was not severe/excessive."

The parents challenged the interim care orders and a contested hearing took place before Her Honour Judge Reardon on 3 December. Both the Guardian and the social worker supported the children remaining in foster care.

HHJ Reardon viewed the CCTV footage and heard evidence from the mother and submissions from all parties. Her decision was to discharge the interim care orders and make interim supervision orders, with the effect that the children could be returned home.

The Court of Appeal has now allowed the local authority’s appeal.

Lord Justice Peter Jackson said: “Here, with the interim threshold plainly crossed, the core issue for the judge was whether the children's physical and emotional safety demanded continued separation.

“This court will only disturb an interim decision of this kind if it is shown to be one that was not open to the judge. Having heard the arguments, I consider that this is such a case.”

He said:

  • The first difficulty was that the assessment of risk that occurred at this interim stage effectively predetermined the ultimate issue in the proceedings. “That issue was not 'What happened on 5 November?' – the court was well able to reach a conclusion about that. Rather it was 'What is the significance for the children's physical and emotional safety of what happened on 5 November?' That was not something that the court was in a secure position to assess.”
  • The judge's analysis of risk focused heavily on the latest incident and had no sufficient regard to the noteworthy history. “The mother had accepted in the previous proceedings that over-chastisement had occurred on many other occasions, including with implements, and O had said that he had been hit many times. This showed a parent with a capacity for significant abuse who had received considerable support to help her exercise self-control: yet this further incident occurred, it was not insignificant, it related to a different child, and it was in a school playground.” The judge did not factor in the significance of this apparent lack of insight, Lord Justice Peter Jackson said. The worrying history and the nature of the mother's response to the recent episode fully justified the position taken by the social worker and the Guardian, but it was not reflected in the judge's assessment, he added.
  • On the other side of the scales the judge placed "the risk of ongoing separation". There was evidence that the children were unhappy to be separated from their parents but that did not establish that the separation was harmful in the context of a placement in foster care that had been made for their own safety. The judge's concern about this aspect of the matter needed to be explored further if it was to become a predominant feature in her decision.
  • The requirement to give reasons for departing from core professional advice is a valuable discipline because it requires the court to identify why it is taking a different view and ensure that it has a solid evidential foundation for doing so. Here the judge made reference to and accepted the evidence of the Guardian, but she did not explain why she was departing from the advice that it contained.

Lord Justice Peter Jackson said: “Overall, I conclude that if the Judge had recognised the limits to the assessment that she was able to undertake, and correctly identified the main elements of the balancing exercise, she would have been bound to conclude that the present priority must be to keep the children safe from the physical and emotional risks arising from their mother's behaviour. Interim supervision orders cannot do that. The parents' application to discharge the interim care orders should have been dismissed.”

Lady Justice Asplin and Lord Justice Patten agreed.

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