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D (A Child) [2005] EWCA Civ 1132

Wide discretion when deciding whether to remove a child under an interim care order, where the Children Act 1989 ('CA 1989'), s 38(2), interim threshold criteria had been met.

D (A Child) [2005] EWCA Civ 1132

Court of Appeal (Civil Division): Wall & Moore-Bick LJJ (29 July 2005)

Wide discretion when deciding whether to remove a child under an interim care order, where the Children Act 1989 ('CA 1989'), s 38(2), interim threshold criteria had been met.

This case concerned an emotionally disturbed girl with behavioural problems ('G') born in March 1996 and the subject of care proceedings. Following her parents' divorce, G lived with her mother and stepfather. In November 2003 G was sexually assaulted after going missing while in her stepfather's care. In September 2004 G was taken into police protection and spent six weeks in foster care after her mother had left her during a police interview. In March 2005 G spent six weeks with her aunt while the family was homeless.

In June 2005 G's stepfather was made a party to the care proceedings, which were transferred from the local Family Proceedings Court to Chester County Court. In July 2005, at the hearing of the local authority's application for an interim care order, it was common ground that the interim threshold criteria had been met for the purposes of Children Act 1989 ('CA 1989'), s 38(2). The local authority argued inter alia that G's mother and stepfather lacked capacity to meet her needs, that parenting improvements only occurred when pressure was on, that G's home situation remained seriously damaging to her and that she should therefore be removed to a more stable environment. G's mother and stepfather argued that G's removal was both unnecessary and likely to be extremely harmful to her, and that the interim order should either be refused or, if granted, granted with the recommendation that the interim care plan be reconsidered until clarification could be obtained from the psychologist as to the likely effects on G of removal to foster care.

Judge Edwards granted the local authority's application and ordered the removal of G under an interim care order, the assessment of G, her mother and stepfather, and a 'twin-track' approach whereby before the final hearing six months later it would be assessed whether G should (i) return to the care of her mother and stepfather or (ii) be placed in long term foster care.

Held, dismissing the appeal, that the threshold criteria under CA 1989, s 38, having been established, the decision which the judge had to make was essentially a welfare decision under CA 1989, s 1. An interim care order should only be made if it was absolutely necessary in the interests of the child to do so. The child had a right to be brought up by her natural mother unless that right was displaced by considerations of welfare.

In the 'welfare equation', the judge had a very wide discretion. He had to take into account all relevant factors and discard all irrelevant factors. If the balancing exercise were vitiated by a failure one way or the other, either to take any factor into account or fail to take any factor into account, then the exercise could be vitiated and the decision thereby plainly rendered wrong. Anyone attacking the exercise of discretion had either to show a substantial error of law or a plain error in the balancing exercise which indicated that the decision was plainly wrong. The more difficult, more finely balanced, a decision, the more difficult it was to upset it provided the judge had gone through the balancing exercise appropriately.

In the instant case, the judge was entitled to make the decision he had made. He was certainly not plainly wrong. The question was whether the judge was within the parameters. In a difficult, sensitive and finely balanced case, the judge's decision was not outwith the band within which reasonable disagreement was possible.

These being interim orders, they would need to be renewed and could be kept under review. If they were not working the judge could be invited to reconsider them.