The Court of Appeal has allowed an appeal by a mother and the maternal grandparents against interim care orders made in respect of three children, saying the transcript of the hearing before the recorder “demonstrates once again the difficulties facing courts required to conduct hearings remotely because of the restrictions imposed as a result of the pandemic”.
Mr Recorder Benjamin had made the orders at a hearing on 25 June 2020 at the West London Family Court in care proceedings relating to T, aged six, J, aged four, and A, aged three.
The background to the case of N (Children) (Interim Care), Re  EWCA Civ 1003, published on Bailii last week, was that the children's parents had married in 2013 and separated four years later. The mother alleged that during the relationship she was subjected to domestic abuse by the father, who also misused drugs.
Initially after the separation, the children remained with the mother but in early 2018 she took them to the father's home where they lived until January 2019. The social work statement alleged that during the parents' relationship and in the immediate aftermath, the children endured a very unsettled and at times chaotic lifestyle while in the care of one or both of their parents. It was said that, during that period, they had witnessed parental conflict and physical abuse.
In January 2019, the father took the children to the maternal grandparents' home and left them there, indicating that he did not wish to resume care in the future. It was at this stage that this local authority first became involved with the family.
For the subsequent 18 months, the children lived with their grandparents and maternal aunt who all occupy the same home. No criticism was made of the quality of the physical care they have receive within the maternal extended family.
The local authority nevertheless remained involved with the family. On 6 March 2020 it was agreed that the children would be accommodated under s.20 of the Children Act 1989.
Medical examinations of the children revealed that A was developmentally delayed in communication, language and social skills. No concerns were identified about the boys’ development.
A kinship assessment of the maternal aunt recommended that the children be place in her care. However, the aunt later indicated that she was unable to commit to acting as a carer in the long term.
The local authority then carried out a regulation 24 assessment of the maternal grandparents. The report described the grandparents as experienced parents who were committed and cooperative. It noted certain incidents in the family’s history but despite these areas of concern it reached a positive conclusion. It recommended that the areas of concern be addressed through a special guardianship assessment.
Meanwhile, the local authority decided to issue care proceedings. The preliminary social work report recommended on balance that the children should remain in the grandparents’ care during the proceedings.
At the first hearing on 4 June 2020, an interim care order was made on the basis of a care plan for the children to remain with the grandparents. A case management hearing was listed on 16 June before Mr Recorder Benjamin.
However, shortly before the hearing the father made further allegations about the maternal family, asserting that the grandfather had been a terrorist when living in Sri Lanka some years ago, that the grandfather had mental health issues, that the maternal aunt had attempted suicide, and that the grandfather had been physically abusive towards J.
The local authority carried out a supplemental regulation 24 assessment which concluded that it was no longer safe for the children to remain in the grandparents’ care.
At the hearing on 16 June, the local authority, supported by the guardian, sought the removal of the children from the grandparents’ care. The recorder decided to adjourn the hearing until 25 June.
The local authority did not file any further statement or interim care plan but did file an application for a ‘holistic psychological assessment’ of the family.
The 25 June hearing was conducted remotely. In the course of submissions, counsel for the local authority informed the court that the maternal aunt had told the social worker that she was now living in a different part of the country and had nothing to do with the children.
Following submissions, the recorder delivered a judgment in which he concluded that the children should be removed from the family home under an interim care order and placed in foster care. He found amongst other things that there was a risk of emotional and/or psychological harm, set against a background of serious incidents arising from conflict within the family. The recorder said he had been comforted that when there had been an incident, the aunt had taken safeguarding action by reporting it to the police, but she was not there to do it now.
“When I consider the inevitability of deep, emotional distress and another disruption from uprooting these children again from their primary carer, do I consider that the children's safety or psychological or emotional welfare demands separation from their grandparents and that such a separation until the final hearing, with the harm it will cause, is a proportionate response to the risks if I leave the children in their grandparents' care? After a great deal of thought, I am afraid that I do,” the recorder said.
The mother and the maternal grandparents appealed.
Allowing the appeal, Lord Justice Baker said: “At this remote hearing, the recorder was faced with a series of case management decisions and a contested application for an order which, if granted, would have removed three small children from the family for the first time.
“During the pandemic there has often been no alternative to conducting truly urgent hearings in this way, but the experience of the past four months has demonstrated that particular care must be exercised when making such important decisions under what are inevitably sub-optimal conditions.”
The Court of Appeal judge said that in this case, Mr Recorder Benjamin had conducted the remote hearing with commendable care and sensitivity, making sure, for example, that the proceedings were interpreted for the family members, some of whom speak little English.
Nevertheless, he said that he was for his part satisfied that the recorder’s decision to endorse the removal of the children from the grandparents' home under an interim care order was wrong.
Lord Justice Baker said: “The recorder referred to the legal principles as summarised in Re C, but I agree with the appellants' submission that he failed to apply those principles, in particular that separation under an interim care order will only be justified where it is both necessary and proportionate, and will 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 the separation are a proportionate response to the risks that would arise if it did not occur.
“In this case, the recorder needed to balance the risks of leaving the children at home against the risk of removing them. Although he considered the former at length, his references to the latter were brief and general.”
Lord Justice Baker said he accepted the submission that the recorder did not give sufficient consideration to the emotional harm the children would experience as a result of separation, and did not take into account, or give sufficient weight to, the gravity of that harm.
“The children have been placed with the grandparents for nearly eighteen months. They are settled there. They have a close relationship with the grandparents. As the recorder acknowledged, for the youngest child A, the grandparents' home has been her home for over half her life. Plainly she will have no memory of any other home,” the Court of Appeal juge said.
“This illustrates the point made by my Lord in Re C that removal at interim stage is a particularly sharp interference with a child's right to respect for family life. The emotional harm she would suffer if uprooted at this stage will be substantial. It can only be justified if her safety and welfare require removal.”
Lord Justice Baker continued: “The recorder's observation at paragraph 49 of his judgment to the effect that, because the grandparents had talked about seeing themselves as short-term carers, the children may already be feeling unsettled about their future and preparing themselves for a move and that the "inevitable harm" caused by removal "may be slightly less than would otherwise be the case", was no more than speculation with no evidential support.
“It reinforces the argument that the recorder underestimated the extent of the emotional harm which the children would suffer if removed which, on any view, would be substantial.”
The Court of Appeal judge also said that he did consider the risks identified by the counsel for the guardian in her position statement for the 25 June hearing as likely to arise if the children remained at home were capable of providing sufficient reason for removing the children at this stage.
“There is no suggestion that the children have been exposed to the risk of physical harm directly or indirectly. The evidence that the children had been caught up in the family conflict is, at this stage, slim. The deficiencies in the grandparents' insight and understanding, cited by the guardian's counsel as a factor justifying the removal of the children, are manifestly not reasons for moving them at this stage.”
Lord Justice Baker said he was “troubled” by the suggestion made on behalf of the local authority that, having been given unsubstantiated information that the aunt had left the home, it was for the grandparents to rebut the consequential concerns, particularly when the information was given for the first time during a remote hearing when interpreters were being used.
“The removal of young children from their home represents a serious intrusion and interference with family life. The burden of proof remains on the local authority at all times. Those professionals representing the local authority and children are under a duty to ensure that recommendations are soundly based. That responsibility is, if anything, even more acute in the inevitably imperfect circumstances of remote hearings,” he said.
“In short, on the evidence before the recorder, the removal of the children was plainly disproportionate. The harm which the children were perceived to be at risk of suffering if they stayed in the home was nebulous and speculative and manifestly outweighed by the harm which the children were certain to suffer if removed from the home.”
Lord Justice Baker also allowed the guardian's appeal against the refusal to authorise instruction of the psychologist.
He said that the widely-perceived excessive and unnecessary use of experts in such proceedings had led to the requirement of necessity being placed on a statutory footing, and all family judges must comply with this rule. On this occasion, however, it seemed to him clear that a psychological assessment was necessary to resolve issues in the proceedings.
“There is some evidence that each of the children has some sort of psychological problem. Furthermore, the principal issue in the case seems to be the impact of family conflict and dysfunctionality on the children's welfare. In my judgment, a psychological assessment would plainly assist the court in evaluating this issue.”
The recorder had proposed that, if the guardian persisted in wishing to instruct an expert, she should submit a more focused application.
“Although that approach may conform strictly with the rules, it runs the risk of causing additional delay,” Lord Justice Baker said. “A better course in the quasi-inquisitorial context of care proceedings will often be to discuss the issue with the parties in court, identify the broad parameters of an expert assessment which is necessary to assist the court to resolve the proceedings, and then ask the parties' representatives to agree the details of the instruction and submit a draft to the court.”
The judge continued: “I recognise, of course, that judges sitting at first instance often do not have the time to engage in such discussions with the parties, particularly in the current circumstances and at remote hearings, and therefore do not have the opportunity for reflection and consideration that this Court usually enjoys. Furthermore, of course, the recorder on this occasion was not only required to make detailed case management directions in these complex proceedings but was also facing a difficult decision on a contested application for an interim care order.”