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N (Children) [2020] EWCA Civ 1070

Successful appeal of a decision to remove three children from their mother under pre-existing interim care orders

This case concerned three children, one of whom suffered from developmental delay. The local authority initiated proceedings due concerns around violence perpetrated by the father against the mother and the children. The children were removed under police protection and taken into foster care for a period of 7 days. Thereafter, the local authority applied for interim care orders, with a care plan of the children remaining in foster care; however, at the first hearing, it was agreed that the children would return to the mother under a working agreement and an order under s.38A of the Children Act 1989 excluding the father from the home. The local authority subsequently made two further applications for removal, which were later withdrawn.

The current appeal related to a third application for the removal of the children to foster care. The local authority maintained that the children were having contact with the father, including at the family home, which was contrary to the working agreement and the exclusion order. Denying all of the allegations, the parents opposed the application for removal; they were supported by the Guardian. After adjourning the application due to lack of time and an appropriate interpreter (the mother spoke limited English), HHJ Watson, sitting as a Deputy High Court Judge, listed the matter for a one-day contested remote hearing. She indicated that she would only hear oral evidence from the social worker; she would not allow oral evidence from either of the parents or the Guardian. Instead, she directed the parents to file sworn statements which she would "take at face value" [9].

At the hearing, the social worker gave evidence for over 3 hours, addressing allegations beyond those that formed the basis of the application for removal. The mother's counsel was unable to take instructions from the mother throughout because the remote hearing was being interpreted to the mother by an interpreter connected via the judge's laptop.

During the proceedings, the solicitor for the father applied for him to be allowed to give evidence, which was refused. The request was reiterated by both parents' advocates during closing  submissions, but was again refused. At the close of the hearing, the Judge sanctioned removal. Counsel for the mother sought permission to appeal and a stay of removal, which were both refused. The mother therefore made an application to the Court of Appeal to appeal the decision.

Setting out the factors that the court must consider when exercising interim powers [28-30], the Court of Appeal highlighted that the court has a "wide and flexible discretion" when making interim orders [30]. However, the Court held that the investigation undertaken by the Judge was unfair and ineffective; having decided to hear some evidence, she should have heard from both the social worker and the parents. Further, the Court found that Judge's evaluation of the evidence was flawed as there was insufficient consideration of all aspects of the children's welfare. In particular, the HHJ Watson had placed too much emphasis on the risk to the children, which she mischaracterised as "grave," and failed to factor into her evaluation that the evidence that she had heard was a "flimsy basis" for such a draconian order. The Court of Appeal granted the mother's appeal and ordered the immediate return of the children to the mother's care.

In respect of the mother's application for a stay, the Court of Appeal differentiated between a short term stay and a stay pending appeal/permission to appeal, setting out the relevant considerations of each application [36] and how said applications should be made to the court [37]. The Court held that HHJ Watson should have allowed for the short-term stay to enable the mother to make an application to the Court of Appeal, especially where she had been disadvantaged by not being able to provide instructions to her representatives.

Summary by Dr Bianca Jackson, Barrister Coram Chambers

Read the full judgment of Re  N (Children Interim Order Stay) [2020] EWCA Civ 1070 on BAILII