The Court of Appeal have decided a case called Re C (A Child: Interim Separation) 2020 and this adds an additional component to the test for separation, so all child protection lawyers, social workers and Guardians need to be aware of it.
It builds upon another Court of Appeal case called Re C 2019 (I have not written about that one, because it was very difficult to ascertain whether it was intending to introduce new principles or was fact specific, this one is much clearer)
The test for interim separation (or continued separation) is now
“(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”
For the purposes of his decision in this case, the judge summarised it this way:
“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”
The 5th point is the new addition – that the LA must be able to set out to the Court what available resources could be put in place which might remove the need for separation.
It doesn’t need to be in a full-blown alternative care plan like full Care Orders and Neath Port Talbot, but I have found a useful approach to be
Imagine that the Court don’t grant removal and the child stays with the parent – what would that look like? (TM my friend Becca Carr-Hopkins). What would be your ingredients of the protection plan or written agreement or contract of expectations. Then, in relation to those, what resources could the LA reasonably put in place to assist with each of these? Having done that, the social worker, the lawyers, and the Judge can consider – would those manage the risks that are present, in full or in part? Would the parents realistically be able to comply with those requirements?
So it becomes not only a useful piece of information for the Court, but an actively useful analytical and decision-making tool for the Local Authority. It helps hone down on ‘do we really need separation, or could we manage this risk another way?’