This is a local authority’s appeal from an order discharging interim care orders in relation to E a girl aged 9, and S, a girl aged 7.

The background is that the children’s parents are separated. Their father is Mr S. In 2018, their mother started to live together with Mr B, who had the care of two children of his own and one stepchild. One of Mr B’s children is T, a girl aged 8. On 4 November 2019, she went to school with significant bruising and other marks to her face and body. The explanation for the injuries is disputed. The local authority alleges that they were caused by the mother or by Mr B. They deny this and say that the injuries were inflicted by T herself.

The five children were removed by the police on 9 November. E and S were placed together in foster care. The local authority issued proceedings on 5 December. On 23 December, interim care orders (with the children remaining in foster care) were made by His Honour Judge Vavrecka without opposition.

The mother and Mr B, who separated in March 2020, were interviewed several times by the police. The five children gave a number of ABE interviews. An expert paediatric assessment was commissioned in the family proceedings.

The matter was listed for a fact-finding hearing in April 2020, but that had to be adjourned because of the pandemic. It was re-fixed for Wednesday 8 July 2020 before His Honour Judge Clarke, with a time estimate of 7 or 8 days. It was a hybrid hearing, with the mother and Mr B and their representatives being present in court and others attending online. I do not lose sight of how challenging a hearing of this kind is for the parties and for the court.

When the hearing started, transcripts of the children’s interviews and the parents’ interviews were outstanding, but the local authority informed the court that they would be available on Monday 13 July. The court started to hear live evidence that day, the previous week having been taken up with the question of whether T should give evidence. Between the Monday and Wednesday, evidence was given by T’s foster carer, the paediatric expert, another doctor and a schoolteacher. Evidence in chief was given by Mr B. The evidence yet to be heard was the cross-examination of Mr B, evidence from a police officer and the evidence of the mother. Unfortunately, the transcripts were not provided as promised due to an error on the part of the local authority. They were considered to be essential and on the Wednesday the judge granted an application by the local authority for an adjournment. The court and the parties were understandably extremely concerned about the delay that this would cause.

On Thursday, 16 July, an application was made on behalf of the mother for the discharge of the interim care orders to allow the children to return home. It was said that there were no welfare concerns about these children and that the evidence was that they had been well cared for. It was argued that continued placement in foster care was not appropriate. The application was opposed by the local authority, Mr S, and the Children’s Guardian. Mr B was neutral.

By the time the judge gave his decision, a date for a resumption of the hearing had not been identified. It seems that the possibilities ranged from mid-August to November 2020, although the judge referred to resumption being in November at best, with a welfare hearing to follow.

The judge gave an ex tempore judgement in which he granted the mother’s application. He noted that the proceedings were supposed to be concluded within 26 weeks and that this would have been expected when the interim care orders were made. The hearing had already been put back from April and now it was being put back even further, with the earliest possible date for resumption being November. He said that even if the mother was found to be responsible for T’s injuries, the consequence would not necessarily be that E and S could not return to her care. He noted that the evidence had not changed significantly since the original order was made. The question was whether the threshold under s. 38 Children Act 1989 was still met and whether continued separation was necessary and proportionate. He recorded that the local authority and the Guardian opposed the mother’s application, the Guardian arguing that the test for removal had been met before and that the passage of time had not diminished the risk to the children. The judge remarked:

“Hindsight is a wonderful thing. If at the initial ICO, it had been known that to obtain a decision in relation to the facts alone would take so long, I wonder whether the decision would have been the same but that decision is the background to this matter. At the time that decision was made, anticipation of the court was that the case would be concluded within 26 weeks.

…

I have to balance on a proportionality basis, an extended period of continued removal from M’s care against the likelihood of harm.”

He then referred to the teacher’s evidence and the fact that the school summer holidays were starting. He continued:

“But when I consider the proportionality exercise, I’m satisfied that the risk to these children presented by the Mother, even if identified as perpetrator to T, in circumstances where there were never any previous concerns regarding the Mother and currently no specific other identified concerns regarding the Mother, when weighed against potential ongoing harm to children of separation and applying the test for interim removal, would identify to me that continued separation from the Mother is not appropriate.”

The judge discharged the interim care orders. The local authority sought permission to appeal, which was refused, but a short stay was granted to allow an application to be made to this court. On 17 July I granted permission to appeal.

Matters have moved on in that the fact finding hearing can fortunately resume on 17 August with a time estimate of 3 days, and a welfare hearing has been listed on 14 December with a time estimate of 5 days. The missing transcripts were obtained on 20 July.

The grounds of appeal, in summary, are that the judge's decision to discharge the interim care orders was premature when the fact-finding process was incomplete and there had been no parenting assessments. He did not consider the gravity of the allegations. He could not and did not balance the risks. The hypothetical question of whether removal would have been sanctioned if the length of separation had been known at the outset, was the wrong question. Ms Savage notes that the judge did not have any evidence that the children were suffering harm in foster care. She submits that delay had no impact on the assessment of risk and that there had been no new evidence or change of circumstances to alter the risk assessment. She submits that the judge fell into the error identified by Davis LJ in Re O (A Child: Interim Care Order) [2019] EWCA Civ 583 at [26]:

“The judge gave no assessment of just what harm O might be at risk of if returning to his mother’s home. Indeed, he probably was in no position to do so on the state of the evidence before him. The judge also does not explain precisely what the harm was that O was suffering whilst in foster care and being apart from his mother. Indeed, he was again not really in a position to do so on the state of the evidence before him; and in fact his view departed from the view, on the face of it perfectly reasonably held, by the guardian and the local authority.”

Ms Savage also referred to Re K (Children) [2019] EWCA Civ 2264 at [25], where I stated that evidence that the children were unhappy to be separated from their parents did not establish that the separation was disproportionately harmful in the context of a placement in foster care that had been made for their own safety.

For Mr S, the children’s father, Ms Sambrooks-Wright supports the local authority’s submissions. It was premature for the court to make a decision of this kind in the middle of a fact finding hearing. The judge placed too much weight on delay.

For the Children’s Guardian, Mr Keyes argues that the judge’s decision was manifestly wrong. The judge was not in a position to balance the risks. Further, the judge was wrong to say that E and S have come to no harm in their mother’s care, as the issue of emotional harm from witnessing T’s alleged treatment remains undecided.

In her clear and comprehensive submissions on behalf of the mother, Ms Wilson argues that this court should not interfere with a permissible and properly reasoned interim decision by a judge who had the measure of the case. The children, who had not themselves come to harm, had already been away from their mother for 8 months. The judge considered and balanced these factors in the course of oral submissions and then in his judgment:

At the end of the hearing we informed the parties that the appeal would be allowed. These are my reasons for agreeing with that decision:

I would therefore allow the appeal and set aside paragraph 1 of the judge’s order so that the interim care orders remain in effect. It is welcome that the hearing is to continue quite soon so that a solid decision can be made about the children’s future as soon as possible. Lord Justice Moylan 18. I agree.