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Re M (A Child) [2006] EWCA Civ 404

Mother’s appeal against interim care order dismissed, but timely hearing of local authority’s fresh care order application ordered.

Court of Appeal: Pill, Wall and Wilson LJJ (12 April 2006)

Mother's appeal against interim care order dismissed, but timely hearing of local authority's fresh care order application ordered.

The child, M, was born 13 weeks prematurely in September 2005 by Caesarean section. The mother and father were not married or living together when M was conceived, but they decided to cohabit after M was born. On 3 December 2005, the father was alone in the house with M, during which time she suffered extensive injuries; the father asserted that the injuries had been caused accidentally, and the paediatrician at the local hospital took the view that the injuries were broadly consistent with the father's account.

The local authority applied for an interim care order, and the judge was faced with the choice of placing M with experienced foster-parents under an interim care order, or allowing the mother to care for M at home, albeit on the basis that the father left the property until the matter had been fully investigated and it was deemed safe for him to return. Having established that the threshold criteria were satisfied, the judge made the interim care order in respect of M, and ordered an assessment of the maternal grandmother to see if she was a fit person to care for M. The mother applied for permission to appeal.

In the meantime, the local authority had reconsidered its position and submitted a fresh interim care plan which recognised the need, if possible, to keep M within the wider family; it also caused an assessment to be carried out of the maternal grandmother, who at first was found to be generally suitable to care for M in the short term, although medical records disclosed shortly before the hearing of the appeal cast doubt on that finding.

Held, dismissing the appeal as a matter of form but directing that the local authority's application to renew the interim care order should be listed for a hearing eight days later, that the judge's decision could not be justified in the absence of evidence that the mother was unfit to care for M; further, the judge had failed to consider the alternative option, offered by the statute, of an interim residence order in the mother's favour and an interim supervision order in favour of the local authority.

Despite finding fault with the judge's judgment, it was not appropriate for the court to exercise its own discretion and impose a solution on the case when it had not heard evidence itself. Accordingly, the matter would be remitted to the county court for a hearing on evidence of the local authority's renewed application and for any cross-application by the mother.

The court advised that up-to-date written evidence of M's current medical condition and her daily care requirements would need to be made available for the county court hearing. The local authority should prepare an up-to-date interim care plan, with details of the support which could be made available to M and her mother if the judge were to return M to her mother's day-to-day care under a further interim care order or under an interim residence/supervision order. The maternal grandmother's position needed to be protected, and she should be at liberty to make an application to the judge to be joined as a party to the proceedings.

The court also referred to the suggestion, made in argument, that it was unusual or even inappropriate for applications to be made for permission to appeal against interim orders; however, the court concluded that this application was properly made and no point arose on the fact that this was an interim order.

Read the full text of the judgment here