Appeal Success in J & Ors Case Reinforces Key Principles of Interim Removal in Child Law

Citation: [2023] EWCA Civ 1266
Judgment on

Introduction

The case of J & Ors (Children: Interim Removal), Re [2023] EWCA Civ 1266 presents a significant appellate review of an interim care order issued in respect of three children in the United Kingdom. This case law summary examines the appeal against the decision made by HH Judge Oliver, focusing on the legal principles applied in the appeal process. The judgment rendered by the Court of Appeal elucidates on various aspects of child law, particularly concerning interim removal under care orders, the welfare checklist, and proportionality.

Key Facts

The subject matter of the case relates to the interim care orders made concerning three young children who had been living with their father following concerns raised about the mother’s ability to care for them. The local authority, after noting that the children were flourishing under the father’s care, reversed its stance and applied for the children to be placed in foster care due to the parents’ toxic relationship and non-compliance with agreed contact arrangements. At the centre of contention are the procedural and substantive considerations taken by the judge at the initial hearing, which led to the children’s placement in foster care and the subsequent appeal to the Court of Appeal.

Several key legal principles underpin the appellate court’s decision in this case, which include:

  1. Interim Removal and Proportionality: Central to this case is the principle that interim removal of children from their parents should only be sanctioned when it’s both necessary and proportionate. The pivotal authority here is Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998, which requires that an order for separation under an interim care order must only be made when a child’s physical safety or psychological or emotional welfare demands it, considering the consequent impact of separation.

  2. Welfare Checklist: The court’s application of the welfare checklist as stipulated in s.1(3) of the Children Act 1989 is another critical legal principle noted. The checklist serves to ensure that all relevant aspects of a child’s welfare are considered when making orders affecting their lives.

  3. Least Interventionist Approach: Citing Re H-W (Children) [2022] UKSC 17, the court discusses that the least interventionist possible order should be sought within English childcare law, consistent with safeguarding the child’s welfare and rights.

  4. Risk Analysis and Safety: The necessity to evaluate risk concerning a child’s safety was highlighted as a key oversight in the original decision. The appeal stressed the duty to analyze the risks that may arise if the child continues to live at home against the emotional harm that may occur due to separation.

  5. Consideration of Available Resources: In line with the duty to find a proportionate response, there is an obligation to consider all available resources that might obviate the need for separation.

  6. Permission for Appeal and Stay: The case of Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 is cited regarding the right to a brief stay of orders to allow for an appeal application to be made, emphasizing that parties should be allowed this opportunity unless immediate removal is justified due to acute risks.

Outcomes

The appeal was allowed by the Court of Appeal, setting aside the interim care order made by the initial judge. This reversal was due to a conclusion that the initial judge had not applied the necessary legal tests for immediate removal appropriately or considered all circumstances in his welfare analysis, particularly regarding the quality of care provided by the father, the risk of emotional harm to the children if removed, and the resources available that might have prevented the need for separation.

Conclusion

The Court of Appeal’s decision in the case of J & Ors (Children: Interim Removal), Re [2023] EWCA Civ 1266 serves as a resounding affirmation of the principles that must govern the interim removal of children from their parents’ care. The appeal underlines the imperative of a careful and thorough risk analysis, which must weigh the necessity and proportionality of interim care orders against less interventionist options. This case consequently provides a valuable precedent and a reminder to legal professionals of the critical need to apply correctly the principles of interim care established in statutory and case law to prevent unwarranted interference in family life.

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