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C (A Child) (Interim Separation), Re [2019] EWCA Civ 1998

Successful appeal against interim removal in care proceedings; Court of Appeal concluded the decision to separate was not a necessary and proportionate response to the situation that had arisen.

The issue in the case was whether an interim order for separation of a 4 month old child from his young mother was justified. A significant issue in the case was the mother's ability and willingness to separate from the father who had served sentences of imprisonment for assaulting her.

The child had broadly remained in the care of his mother since birth, albeit in a far from straightforward way, including first of all in a placement with the maternal grandmother, then in a mother and baby foster placement, and then in a subsequent mother and baby foster placement after the first placement ended. The local authority had twice previously unsuccessfully sought to remove the child to foster care. The local authority consistently argued that the child should be removed, but the court consistently refused to endorse it, despite lies and breaches of the rules by the mother.

The second, brief, mother and baby foster placement was a disaster and the local authority restored the matter to court. The Recorder heard evidence from the foster carer and the mother who disputed the reason for the breakdown of the placement. The mother alleged the local authority had set her up to fail and that the foster carer had deliberately tried to sabotage her and the child staying together. The Recorder concluded that the mother had set out to sabotage the placement. The Recorder concluded that the test for immediate separation was met and refused permission to appeal and a stay. The Court of Appeal granted a stay and the mother and child had been at a new mother and baby foster placement since.

That mother and baby foster placement had progressed well and the mother was complying with all rules and agreements, so by the time of the appeal the local authority were not proposing the child be removed from her care. It only remained to determine whether the appeal should or should not be allowed, which was not academic as a matter of principle was involved and may have arisen again in this case.

The core ground of appeal was that the Recorder was wrong in law to find that sabotaging the placement was sufficient to cross the very high threshold for interim removal. The Court of Appeal did not consider the other grounds to have merit.
Peter Jackson LJ, in a judgment with which King LJ agreed, concluded that the appeal must succeed. The Recorder directed himself correctly on the law. He was entitled to consider it would be unsafe for the child to be with his mother unsupervised in the community. He was aware the case had a particular history with the local authority repeatedly seeking to remove the child from the mother, but being prevented from doing so. He fairly recorded the mother had shown good aspects to her parenting, that she was in a pressured situation, and that there were serious disadvantages to the child being removed from a parent to whom he was attached.

However, the Recorder did not then bring those matters into account when assessing the necessity and proportionality of separation. He effectively based his decision on the events of the previous 11 days. He was entitled to find the mother had repeatedly shown herself to be capable of being untruthful, immature and confrontational. That had to be set alongside all the factors in the case. The case concerned an isolated young mother and a first child. A final hearing was due to take place in 12 weeks time and it could not be foreseen whether the local authority's application, which might well extend to a plan for adoption, would succeed or not. In such circumstances there must be a high premium on keeping all options open to the court making the final decision. The separation of mother and child at such a crucial developmental stage would risk skewing the final decision and therefore required a very high level of justification. The reasons said to justify separation could not be seen as sufficient. Removal was not in fact the only realistic option when an alternative placement was available.

The decision to authorise separation was wrong in that it was not a necessary and proportionate response to the situation that had arisen.

Summary by Victoria Flowers, barrister, Harcourt Chambers

You can read the full judgment of C (A Child) (Interim Separation), Re [2019] EWCA Civ 1998 [2019] EWCA Civ 1998 on BAILII