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Cite as: [2014] 1 FLR 807, [2013] EWCA Civ 489

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Neutral Citation Number: [2013] EWCA Civ 489
Case No: B4/2013/0427 & 0663


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :





Miss Frances Judd QC & Mr Beresford Kennedy (instructed by Swindon Borough Council) for the Appellant
Mr Leslie Samuels QC with Miss Maria Gallagher who was unavoidably absent from the hearing but engaged in the preparation for it (instructed by Lemon & Co Solicitors) for the (Mother) 1st Respondent
Mr Graham Kean (instructed by Withy King Solicitors) for the (Father) 2nd Respondent
Miss Alison Burge (instructed by Bevirs Solicitors) for the (Guardian) 3rd Respondent
Hearing dates : 26th March 2013



Crown Copyright ©

    Lady Justice Black :

  1. On 26 March 2013, we heard an appeal in relation to an order made by District Judge Ralton on 11 February 2013 in care proceedings concerning a little boy, A, who was born on 30 November 2012 and is 4 months old. At the conclusion of the hearing, we announced our decision to allow the appeal, substituting an interim supervision order for the interim care order that the district judge had granted. This meant that A would immediately move from the foster placement where he has been living since birth to join his mother (hereafter referred to simply as M) in the mother and baby unit at the prison where she is presently serving a term of imprisonment. We reserved our reasons which are now provided in this judgment.
  2. Two appeals were in fact listed for hearing before us, both of which had been transferred to this court by HH Judge Marshall under Rule 30.13 of the FPR 2010 because she considered that the issues to which they gave rise made them suitable for determination by the Court of Appeal rather than by a circuit judge as would have been the normal procedure. In addition to M's appeal against the interim care order granted by District Judge Ralton, there was the local authority's appeal against an earlier order made by the district judge on 25 January 2013 declaring that A had been unlawfully removed by the local authority from M's care within days of his birth. It was clear that there would be insufficient time during the hearing to deal with both appeals. It was decided to concentrate on M's appeal which would determine A's immediate future whereas the local authority's appeal concerned what was now history. The local authority's appeal was adjourned and the local authority was required to notify the court and the other parties by 19 April 2013 (since extended) whether it wished to proceed with it.
  3. I need to give a brief history of this case.
  4. M is in her mid twenties. A is her third child. She has two older boys, JS and MS. They do not have the same father as A. JS will be 4 years old in June this year. He was accommodated on a voluntary basis by the local authority when he was just under 4 months old because of concerns about M's drug use and chaotic and risky behaviour. He was quickly placed with his maternal grandmother and now lives with her under a residence order; M sees him regularly. MS is 2 years old. He went to live with M in a drug rehabilitation unit, Trevi House, in late April 2010 shortly after his birth. There M made slow but good progress and formed a bond with MS. It was considered to be important that she did not continue her relationship with MS's father and she said the relationship was over. However less than two weeks after she left the rehabilitation unit with MS in November 2010, she told the social worker that she wanted to be with MS's father, notwithstanding that this would mean the removal of MS from her care. MS was accommodated by agreement 13 days after he and M left the unit. He never returned to live with M and was adopted in March 2011.
  5. Given that the care proceedings in relation to A are only in the early stages, there have not yet been any findings of fact as to M's history after this. Some features of it seem to be tolerably clear. M must have become pregnant with A in early 2012 but she did not attend for ante-natal care, she said because she was afraid the baby would be taken away. On 3 September 2012 she was arrested in relation to a dwelling house burglary, which she says was committed in 2011, and remanded in prison where she has remained since. On 31 October 2012, she was sentenced to 3 years imprisonment. Her earliest release date is October 2013. She wanted to look after the baby in the prison mother and baby unit but social services did not support this; their plan was to apply for an interim care order and to place the baby in foster care with M having monthly contact. Initially, M was refused a place in the mother and baby unit.
  6. On 3 December 2012, A was taken into foster care. I will not go into the circumstances of this as they are the focus of the local authority's adjourned appeal. It is enough to record the fact that no court order was sought authorising this course. Following the decision of District Judge Ralton on 25 January 2013, M's case was reconsidered by the admission board responsible for deciding whether prisoners can be admitted to a mother and baby unit ("the board") and on 1 February 2013 she was offered a place but there was by then an interim care order in place and the local authority was not prepared to place A in the unit with her. So it was that on 11 February 2013 District Judge Ralton came to hear a contested application for an interim care order in order that the dispute over A's placement could be resolved. The effect of the interim care order that he granted was, of course, that A remained in foster care rather than joining M in the unit.
  7. It may be helpful to understand something of how the local authority put its case. We have a copy of the threshold document and addendum relied upon by the local authority. Neither document is dated. This is all too frequently the case with local authority documents and I take this opportunity to stress that it is vital that all documents should be dated. The reasons why are many and varied and should largely be obvious so I will not spell them out here.
  8. The local authority asserts in the threshold documentation that M has an extensive history of class A drug misuse dating back to her early teens and continuing during her pregnancy until she was remanded in custody on 3 September 2012. It asserts that she has engaged in criminal activity, including theft, burglary and prostitution, in order to fund her drug habit. It also asserts that she has a history of involvement with violent men, namely the father of her older two boys and A's father. Further, it asserts that she failed to avail herself of ante-natal care during her pregnancy with A and that by virtue of this and her continued use of Class A drugs during pregnancy, she has put A at risk of significant harm. Despite support, it says, she has shown that she remains unable to prioritise the needs of any children in her care.
  9. A's social worker said in her statement of 3 December 2012:
  10. "The Local Authority's previous involvement with M suggests that she has the potential to achieve positive changes but may be unable to sustain these improvements. M's ongoing pattern of behaviour, drug use, criminal lifestyle and poor lifestyle choices raises questions regarding her long term commitment to parenting her child and prioritising their safety and welfare."[1]
  11. Considering the various factors in the welfare checklist, the social worker expressed the view that:
  12. "there are reasonable grounds to believe that according to M's history and ongoing lifestyle choices, she will be unlikely to be able to parent A upon her release from prison. In addition to this and in accordance with A's timescales the Local Authority does not think that it is in A's best interests to assess whether M now has the capacity to make the necessary changes upon her release. Therefore options of permanency will need to be explored for A as soon as possible."
  13. The initial care plan also shows that the local authority had decided from the outset that M would not be a suitable carer for A and that, subject to any possibility there may be of him living with his father, he would need to be placed in permanent alternative care without delay. Meanwhile, their plan was that he would live with foster carers and see M at the prison on approximately a monthly basis, that level of contact being fixed to accord with the decision that A's future lay elsewhere.
  14. The local authority maintained its position following a place in the unit having been offered to M. A's social worker conceded in her statement of 8 February 2013 that M had shown the capacity to provide for the basic care needs of MS so there would be a low risk of immediate physical harm to A whilst living in the unit with M. However, she said that it was the local authority's view that it would not be in his best interests to live with M there. The reasoning for this related to what would need to happen, in the local authority's view, in the period following M's release from prison. The social worker pointed out that in the past M had been unable to maintain changes made in a residential setting once she returned to the community. She would therefore need to be assessed after her release and this would delay a resolution for A. Furthermore, the assessment would be unlikely, in the social worker's view, to conclude that M could safely parent A herself and the local authority would not be able support A living with her in the community whilst it was done. The upshot would be that A would therefore have made a number of moves of placement in vain which would be disruptive for him.
  15. DJ Ralton's judgment of 11 February 2013 in relation to the interim care order

  16. The hearing on 11 February 2013 was the first occasion on which the court had considered in substance whether an interim care order was appropriate. There had been 4 previous hearings but diverse obstacles had prevented anything more than the making of what has been described as a "holding" interim care order up to this point.
  17. The 11 February hearing lasted the whole day and oral evidence was given by M, the social worker and the guardian. The guardian had come into the case at very short notice because of the illness of the original guardian. The district judge set out that she "has had to rely on the weekend just gone to read the papers to bring herself up to speed with what this case is all about". He recorded that at a previous hearing he had informed the parties that he took the view that "so important was the decision I had to make today that I thought it essential that A had a guardian" and he expressed his gratitude to the guardian "for being able to attend today and give her candid and considered view to the court". The only opportunity that the guardian had had to see M was in the cells at court immediately before the hearing began.
  18. M conceded that the interim care threshold was established so the argument before the district judge was about what was in A's best interests in the interim.
  19. M's case was that much had changed since the legal proceedings concerning MS. Her position, supported by A's father, was that she and A should be together in the prison unit. It appeared to the district judge that she was accepting that she would need to be assessed in the community once she was released. The maternal grandmother had indicated that she would be prepared to have M and the baby to live with her on a temporary basis at that point, on firm conditions.
  20. The local authority's case, supported by the guardian, was that there was so little evidence of change for the better on the part of M that it would be wrong for A to move from the foster parents to live with M in prison, then facing removal again from M's care either pending an assessment of her in the community or because it was decided that she would not be able to care for A in the long term. It argued that A would be harmed by a decision about his future being postponed until after M was released from prison.
  21. The district judge took a view as to what substance the concerns identified by the local authority about M as a parent may have. He made the following assumptions:
  22. i) He proceeded on the basis that it appeared that M had "been able to separate herself wholly" from the father of her older two children. He commented that "[w]hether she is yet capable of avoiding abusive partners in the future is another matter" although he acknowledged that M's reaction in the witness box when the question of A's father's anger management problem was put to her was positive in that it showed that M "was carefully looking at things". He accepted that there was nothing more between M and A's father currently than being biological parents of A.

    ii) He recorded that it seemed that once M was free of the older children's father, "her drug use tailed off considerably and she told me that she was only an occasional user of crack cocaine" but that during her pregnancy "for a three week period she tells me she was using crack cocaine on a daily basis". He said that therefore "it would appear from the current limited information before the court that M's reliance on crack cocaine as soon as there is crisis [sic] in her life is, on current evidence, as alive today as it ever was". He considered that the fact that she had not used drugs in prison did "not take her case that much further forward".

    iii) He was anxious that she would "change her story according to her objectives and her audience", noting she had lied to get herself on a drugs programme.

    iv) He noted her failure to attend for ante-natal care because she was afraid the baby would be taken away and considered that that showed her putting her own wishes before the interests of the foetus.

    v) He said that "one has the impression from the evidence ….that when M cooperates it is because there is, from her perspective, no better solution available. Of course lying to authority, avoiding authority and the fact of jumping bail shows a continued defiance even if all criminal offences, other than the offence of jumping bail itself came to an end at the end of 2011 which I think is established by the records we have".

    vi) He was troubled about M going to the maternal grandmother when she absconded whilst on bail, notwithstanding that JS was living there.

  23. The district judge found the case "finely balanced" and said that he had agonised over the right decision to make. He acknowledged the advantage of a placement in the unit as being that the baby could be cared for by his mother and he reminded himself of Article 8. Also, safe and adequate parenting could be provided there and it would give M "a much better opportunity for running her case that she be assessed" in the community when released.
  24. He identified as disadvantages that:
  25. i) A will have formed a degree of attachment to his foster parents and would have to transfer that to M "in circumstances where, given the lack of improvement and change on her part, the prospects so far as they can be assessed at the moment of M caring for A in the long term on release have to be regarded as gloomy". If that gloomy prognosis proved right, A's attachment would have to be transferred elsewhere again. If he went back to foster parents at that stage, rather than to his father, there could have to be yet another move.

    ii) M's proposal imported considerable risk from delay which could easily amount to 12 more months and which would prejudice A's welfare.

  26. He concluded as follows:
  27. "In the informed light of pessimism given the lack of evidence of M's ability to change to date causes me to conclude [sic] that on balance it would not be right to return A to her care, that return to her care would have to be regarded….as a temporary measure and in effect a stay on the proceedings. There may be cases when that could be justified, in this case I come to the conclusion that A's welfare does not justify it."
  28. The district judge was asked, after he had concluded his main judgment, to deal with the question of the proper test on an interim care order application. His attention had properly been invited to Re K and H [2007] 1 FLR 2043 which he had cited at the beginning of his judgment for the proposition that "removal of a child from parents should not be sanctioned unless a child's safety requires interim protection". Returning to Re K and H in the addendum to his judgment, he observed that the "difficulty with safety" was that none of the authorities had looked at the situation where a child is to be placed in an environment like the prison mother and baby unit in this case which is safe in the physical sense but temporary and false. He added that when looking at safety in the interim, one can look at the child's emotional safety. He thought it would be unsafe to return A to M's care in prison "on an emotional level because of the effect of staying the proceedings" to which he had referred in his main judgment.
  29. The submissions on appeal

  30. Mr Samuels QC, who together with Ms Gallagher represented M in the appeal, submitted that the district judge failed to apply the correct "test" for an interim care order and was also plainly wrong, on the material before him, to grant such an order. M's submissions were reinforced by reference to Article 6 and Article 8 ECHR.
  31. It was argued that the district judge wrongly focussed on the longer term future of A and pre-judged the care proceedings, effectively determining them against M at an interim hearing on the basis that the prospects of her being able to care for A were gloomy. It was submitted that the consequence of the district judge's order was to deny M the opportunity to form a bond with A and therefore to deprive her of a case in the care proceedings. Counsel pointed out that the district judge had criticised the prison board in his earlier judgment of 25 January 2013 for doing this and had commented that he was troubled because the board "appeared to have been looking at final conclusions with respect to the future welfare of the child rather than the interim position" when the "evidence is yet to be gathered, the assessments made and perhaps most importantly of all the judgment given that that is the case" (§9 of the January judgment) and that "a child should only be removed if necessary for the safety of the child" (§15 ibid).
  32. The interim care hearing was not an appropriate forum in which to arrive at final decisions, it was submitted. It was said that this was clear from the authorities (see below) and counsel also drew attention to the shortcomings of the hearing and in the evidence available at that juncture. The hearing was said to be rushed. The social worker who gave evidence had not met M except in the context of contact. The guardian had had little opportunity to investigate and had only met M that day at court. There was obviously not yet a written report from her in compliance with FPR 2010 PD16A paragraph 6.8(a); in fact there was nothing in writing from her at all for the hearing. In addition, an addendum report was needed from Dr Indoe, the consultant clinical forensic psychologist who had assessed M for the purposes of the proceedings relating to MS and produced a report dated 7 November 2010.
  33. Furthermore, Mr Samuels challenged the judge's gloomy prognosis. He pointed out that M had had no problems with her practical parenting ability when she looked after MS, that she had managed to separate from MS's father and that she had moderated her lifestyle, not having committed any crime since 2011 and only occasionally having used drugs. It was wrong to deny her the opportunity to demonstrate her ability to sustain these changes, it was submitted. Any delay would be justified in an attempt to enable A to be brought up by his own mother.
  34. It was also submitted that the district judge had failed to recognise that there were ways in which, if appropriate, delay in determining A's future could properly be kept to a minimum. He had wrongly proceeded on the basis that if A went to live with M in the unit, the care proceedings would necessarily have to continue for the rest of her prison sentence whereas there was no reason why there should not be an early final hearing whilst A and M were still in the unit at which mature consideration could be given to all the options for A. This might have led to A's removal from M's care with a plan for permanent placement elsewhere or resulted in continuing placement with M in the unit under interim orders or even under a final care order, it was submitted.
  35. The guardian and the local authority took much the same position in relation to the appeal, the submissions being for the most part advanced by Ms Judd QC who with Mr Kennedy represented the local authority. She submitted that the district judge's decision to make an interim care order maintaining the separation of M and A was open to him on the evidence and the right one in all the circumstances. She submitted that he had taken an approach consistent with the authorities and had carefully balanced the advantages and disadvantages of M's proposals, taking into account the proper factors and reaching a decision that was well within his discretion.
  36. She argued that the district judge was correct to take account of the period of separation between A's birth and the hearing. This case was not the same, the local authority submitted, as a case in which a child was going to be removed from a parent at birth or after forming an attachment to that parent. The district judge could not ignore A's actual circumstances and the fact that a move to live with M would uproot him from his current home and disrupt the attachment he had made to his foster parents, causing him emotional harm. The guardian had given evidence of her concern about this and, whilst Ms Judd acknowledged that children are moved in care (and in life) and one cannot always be too delicate about it, the local authority's submission was that the district judge was right to take into account that it is generally not in a child's best interests to move too much.
  37. Counsel argued that the district judge was also right to take account of the long-term prospects for M caring successfully for A. Ms Judd expressly disavowed any suggestion that the court is entitled to determine the care proceedings summarily at an interim care hearing; her submissions fully acknowledged that there would have to be a (prompt) final hearing. Her argument was that the district judge was entitled to factor the prognosis for M's case into his determination of what was in A's best interests in the meantime. In so doing, he was not pre-judging the care proceedings but assessing the likelihood of a move to M now being followed by a move away from her later with more disruption and emotional harm and then taking that into account in determining what was in A's best interests at this interim stage. Indeed, he himself observed during the hearing that M could still contest the final hearing armed with supportive evidence such as a positive addendum assessment from Dr Indoe.
  38. Counsel acknowledged that there is a limit to what evidence can be explored at an interim hearing but maintained that the district judge had enough to go on and was right to view M's prospects pessimistically given her recent past behaviour in relation to ante-natal care, drugs and lifestyle. In any event, she said, if there were to be a prompt final hearing, the fact that M and A had not been living together or having frequent contact would be only part of the picture, although it was conceded that if M and A were to stay together in the long term, the sooner A went to live with M the better.
  39. Counsel also submitted that the district judge was entitled to put weight on the issue of delay and to proceed on the basis that exploring M's case further would mean considerable delay in determining the plans for A because of the inability to test her capacity until she was living in the community.
  40. The law

  41. In Re GR (Care Order) [2010] EWCA Civ 871, this court gathered together a number of the authorities on how to approach the welfare stage of an application for an interim care order (see particularly §§35 – 42) and I do not propose to repeat what I said there. The authorities not only give guidance as to the sort of factual situation that justifies an interim care order but also deal with the nature and purpose of the interim care process.
  42. As to the nature and purpose of the interim care process, Mr Samuels QC and Ms Gallagher rely upon Re G (Minors)(Interim Care Order) [1993] 2 FLR 839 in which the Court of Appeal said:
  43. "The making of an interim care order is an essentially impartial step, favouring neither one side nor the other, and affording to no one, least of all the local authority in whose favour it is made, an opportunity for tactical or adventitious advantage."
  44. In Re H (A Child) (Interim Care Order) [2002], Thorpe LJ said:
  45. "[38] ….Above all it seems to me important to recognise the purpose and the bounds of an interim hearing. There can be no doubt that a full and profound trial of the local authority's concerns is absolutely essential. But the interim hearing could not be allowed to usurp or substitute for that trial. It had to be properly confined to control the immediate interim before the court could find room for the essential trial.
    [39] …..In my judgment, the Arts 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it."
  46. He restated this proposition later in Re LA (supra) as follows:
  47. "The decision taken by the court on an interim care application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture"
  48. Ms Judd did not seek to undermine these passages from the authorities but rightly invited our attention to the qualification that Thorpe LJ incorporated in what he said in §39 of Re H (above) to the effect that the judge should abstain from a final determination of the case "unless the welfare of the child demanded it". As she observed, the course that the court has to take on an interim care application may sometimes unavoidably have long term consequences. However, this does not, in my view, detract from the court's duty to do its best to make decisions which respect the "purpose and bounds of an interim hearing" and not to "usurp or substitute for [the] trial" (Re H §38).
  49. The guidance as to when an interim care order is appropriate can be found in Re H (A Child)(Interim Care Order) [2002] EWCA Civ 1932 ("separation was only to be contemplated if [the child's] safety demanded immediate separation"), Re M (Interim Care Order: Removal [2005] EWCA Civ 1594 ("the very high standards that must be established to justify the continuing removal of a child from home"), Re K and H [2006] EWCA Civ 1898 ("interim….removal….is not to be sanctioned unless the child's safety requires interim protection"), Re L-A (Care: Chronic Neglect) [2009] EWCA Civ 822 (endorsing the earlier authorities), Re B (Care Proceedings: Interim Care Order [2009] EWCA Civ 1254 and Re B (Interim Care Order) [2010] EWCA Civ 324.
  50. The focus of M's case was upon the authorities which talk in terms of removal not being justified unless the child's safety requires it whereas the local authority preferred to look at the issue in terms used in the two Re B cases I have cited above.
  51. In the first Re B, Wall LJ said that the trial judge's direction to himself as to the law could not be faulted. That direction was as follows:
  52. "whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care" (Re B [2009] §31)
  53. Wall LJ referred back to this with approval in the later Re B (see §21 of that decision), saying that it seemed to him a test which can be universally applied. However, it is important to note that in the first Re B Wall LJ did not stop with that direction of the trial judge's. He went on to review the authorities on interim care orders, endorsing what was said in Re L-A and therefore affirming the earlier authorities which I cited above. His ultimate conclusion was expressed in the sort of terms that were used in those earlier authorities as he said:
  54. "I agree with the judge that the s 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care….In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection." (§56)
  55. Accordingly, I do not consider that Wall LJ's approval of the proportionality approach was intended to alter the import of what had been said by the earlier authorities. Their description of the circumstances in which an interim care order is justified assists in determining whether removal is proportionate and vice versa.
  56. Counsel in the present case found no authority in which it was said that a different approach should apply depending on whether the court was considering whether to remove a child for his or her interim protection or to decline to return the child for that reason. Indeed, M's counsel pointed out that Re M (Interim Care Order: Removal) [2005] (above) concerned a child who had already been removed from home to foster parents, yet the court contemplated a traditional approach to the issue of whether there should be an interim care order.
  57. Whilst the local authority did lay particular store on the fact that A had already been removed from M's care, this was not, I think, because it was suggested that a different approach should in principle apply to such a case but because, as a matter of practice, the situation gave rise to different considerations from those arising where a child is removed from a parent with whom they have an established relationship.
  58. M's counsel submitted that a debate about whether the approach to an application for an interim care order differs depending on whether the child is or is not already living away from home is in any event of no relevance in the present case because of the circumstances of the initial removal of A from M and the fact that the February hearing before the district judge was the first opportunity for the court to consider the substance of the case for an interim care order.
  59. Mr Samuels drew attention to the similarity of the facts in Re M to those in this case. There, the removal of the two year old had occurred as a result of an interim care order made at a hearing in the family proceedings court on 25 May 2005 of which the parents alleged they had not been notified (a disputed allegation) and which they did not attend. On 2 and 3 August 2005, a hearing was held at which the parents' challenge to the interim care order was considered, with evidence being given by social workers, the parents and the guardian. A professional assessment was to be carried out and it was therefore impossible to fix the final hearing until March 2006. It appears that the case advanced in support of an interim care order meanwhile rested on historical concerns, a previous failure of the parents to co-operate with professionals, volatility and intermittent violence in the household, and deficiencies in their parenting skills. The judge's grant of an interim care order was overturned by the Court of Appeal. Thorpe LJ went through the guardian's concerns which were at the heart of the judge's decision. Amongst them was the guardian's view that the child had adjusted to her placement in foster care and the status quo should be maintained. Thorpe LJ observed:
  60. "[19]…..Reliance on that feature of the case seems to me insecure. The status had been achieved in circumstances that were certainly under question and in dispute. In the measured view of the case, the 8 or 9 weeks that R had been parted from her family had to be balanced against the much longer period that would result from the continuation of the interim care order."
  61. We have not yet determined whether the district judge was correct in his view that the initial removal of A from M's care was unlawful, so it is probably fair to say, like Thorpe LJ in the passage I have just quoted, that the circumstances leading to the separation are "under question", certainly as to the legalities. However, even if the initial removal was unlawful, I doubt that it would be appropriate to disregard the fact of the existing separation of mother and child as counsel for M would have us do. A court considering what is in a child's best interests must take account of all the circumstances and will concern itself with the reality of the child's situation, thus, in this case, not ignoring the manner in which the present arrangements for foster care were arrived at but equally paying attention to the fact that a move from the foster carers to M will involve a change in the child's circumstances which may have an effect upon him. It is important to remember in this regard, as I reminded myself in §42 of Re GR, that the paramount consideration in the court's decision as to whether to grant an interim care order is the child's welfare, as required by section 1 of the Children Act 1989, the court having particular regard to the matters set out in section 1(2), section 1(3) and section 1(5) of the Act.
  62. The value of authorities such as those I have cited is in assisting the court to know how it should approach its task of determining what will serve the child's welfare in the interim. I would resist any attempt to describe what is said in them as "a test" although, given the terms of the argument advanced to us, I will use the term in dealing with the submissions made on behalf of M. Similarly, I would discourage attempts to compare the facts of cases in order to determine what order should be made, given the infinite variety of circumstances that face the court on applications such as this one.
  63. Against that background, I turn to consider whether Mr Samuels and Ms Gallagher are correct in arguing that the district judge set out the wrong "test" for an application for an interim care order. Focussing on what the district judge said in his addendum to his judgment, they argued that he mistakenly thought that the "test" should be different where the mother is in prison. I do not accept that he did. It is inappropriate to construe a judgment as a statute, particularly where the judge said what he said in an extempore supplement to his judgment such as this. He was right in observing that none of the decided cases dealt with the situation facing him, that is where the mother is living somewhere which is safe but, as the district judge put it, "temporary and false" as would be the case with M if she were to live with A in the prison mother and baby unit. I do not read him as saying any more than that as a result there is no guidance expressly on the point he had to address. He was entitled to rely upon Re K and H from amongst the authorities and his subsequent observation that safety encompasses not only physical safety but emotional safety was also correct. The debate must turn, therefore, to whether the district judge applied the approach to which he had adverted and whether his decision sufficiently respected what has been said in the authorities about the proper role and bounds of an interim care hearing.
  64. Wider discussion

  65. The central issue in this case is how the courts should approach an application for an interim care order where the interim safety of the child is not in question but for other reasons it may be in the child's interests not to be reunited with their parent. It arises here because it is known from M's care of MS that in a protected environment she is able to care for a child both physically and emotionally and a placement of M and baby in the prison unit will ensure that she does not give way to the temptations that have in the past derailed her attempts to look after her children. A safe environment of this sort will probably not often be available to a parent given that residential assessments are a scarce resource. This may be one reason why, possibly somewhat surprisingly, there is no decided authority dealing with circumstances such as we have here.
  66. A reason why the issue may have arisen now may be the current initiatives to change the practice in relation to care proceedings and to speed up their progress. These initiatives have generated an acute awareness of the need to avoid delay in determining children's futures because of the damage that this can do to them emotionally and I suspect that they may have influenced the district judge's approach. The need to avoid harmful delay was quite plainly very much at the forefront of his mind as we can see both from his main judgment where he identified the prospect of delay for A because of the need to test out M's ability to maintain proper care of him in the community on her release from prison and from his addendum where he spoke about the impact this would have on A's emotional safety.
  67. I do not criticise the district judge for scrutinising the case before him rigorously in the light of the overall timetable for A and of what was known about M's history so far even though I do not agree that the course upon which he ultimately settled was the correct one on the facts of this case. He said that he found the case finely balanced and that he had agonised over the right decision to make and that is not at all surprising. The problem he faced was not made any easier by the lack of authority to give him guidance.
  68. The district judge took the view that the delay he had identified as likely constituted a danger to A's "emotional safety" in the sense contemplated by the interim care order cases. In my view, he was wrong about this. The interim care order regime is designed, as this court has made clear in the authorities to which I have already made reference, to ensure that the child is kept safe in the period prior to the court's full consideration of the local authority's care application. The focus of an interim care hearing is upon what may happen to the child during the interim period if he or she continues to live with or returns to live with his or her parents. An interim care hearing is not designed for the purpose of evaluating the longer term future except in so far as that is necessary to give directions for the management of the case. And it should not lead to the making of an interim order that will, as a matter of fact, afford an advantage to the local authority (Re G (Minors)(Interim Care Order) (above) or prejudice a parent's ability to put forward proposals to care for their child.
  69. The reasons why the interim care hearing has to be limited in this way are likely to vary from case to case but I will give examples.
  70. One obvious reason is that the threshold affords a lesser protection to parents and children against the state's intrusion into their family life than there is with a final care order; all that need be shown is that "there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)" (section 38(2) Children Act 1989).
  71. Another reason is that the evidence is unlikely to be complete by the time of the interim care hearing. The hearing in this case took place rather later in the process than may often be the case so there was perhaps more material available than there may sometimes be. But there were still important gaps and it is surprising how the complexion of a care case sometimes changes as more evidence becomes available. It is important that nothing I say should influence the substantive decisions that will have to be taken in due course in the care proceedings. I do not intend to convey any view as to the strengths and weaknesses of the local authority's case as I have formed none. I will simply mention, by way of illustration, some of the material that seems still to be outstanding:
  72. i) Although the guardian had worked hard on the documents, she had only recently come into the case and had barely met M. She had not yet prepared the written report that would normally be required from her for the final hearing. The preparation of the guardian's report is a valuable discipline for the guardian because the process of reducing one's view to writing forces careful reflection. The report is also important in that it provides a parent with the opportunity to understand in advance of the full care hearing what the guardian's view of the case is and why and to make a considered response to it.

    ii) There was no addendum to Dr Indoe's 2010 report addressing whether, in his view, there had been any material changes in M or in the surrounding circumstances. I do not suggest that it will always be appropriate for an addendum report to be obtained in circumstances such as these. Expert evidence is only to be permitted where it is necessary to assist the court to resolve the proceedings (FPR 2010 Part 25 rule 25.1), robust case management is to be expected as cases such as Re TG (A Child) [2013] EWCA Civ 5 underline, and not every parent will be able to apply successfully for a section 38(6) assessment (see for example Re T (Residential Parenting Assessment) [2011] EWCA Civ 812). However, an addendum was required to Dr Indoe's report here and the district judge subsequently made an order for it to be provided.

    iii) No report from Trevi House, the unit where M had lived with MS, appears to have been included in the bundle. It might be anticipated that this would have provided information as to M's strengths and weaknesses at that time which would assist social services, the guardian and the court to evaluate M's assertion that she had since changed materially.

    iv) In view of the order we made at the conclusion of the hearing, the evidence at the final hearing will no doubt also include some information as to how M has managed with the care of A in the prison unit.

  73. In saying that an interim care hearing was not the place for an evaluation of the longer term position, I am not saying that the district judge had to decline to look at the possible outcome of the final hearing at all. He was required to manage the case procedurally and for that purpose he was entitled, I think, to make a provisional evaluation of it on the evidence assembled so far and needed to do so in order to determine how the case should proceed thereafter. As he recognised, he needed to keep a firm control over the proceedings and had to ensure that in so far as possible the timetable for the proceedings did not get in the way of A's timetable. I agree with counsel for M that the way in which he could properly have minimised the impact of delay on A was to schedule an early final care hearing, rather than taking decisions at the interim care hearing which in my view came perilously close to prejudging the outcome of the case. Depending on the complexion of the evidence by that stage, that early final hearing would provide an appropriate forum for consideration of whether the prospects of M successfully caring for A herself were so poor as to leave no alternative to the making of a final care order or whether there was sufficient optimism to justify a further postponement of the decision or the making of some order which would permit continued exploration of the possibility that A might live with her.
  74. In addition to the poor prognosis, as he saw it, for M's case and the delay to the plans for A that would result from the need to test out her good intentions when she came out of prison, what influenced the district judge here was the harm that would be caused to A by disrupting the attachment that had begun to grow between him and the foster parents in order to place him with M now and the chance that A would be subjected to further moves later on.
  75. I would not dismiss such disruption to A's attachments and his settled living arrangements as irrelevant but it had to be put into the balance alongside the other factors that were relevant to the district judge's decision and accorded the weight that was appropriate given the Court of Appeal guidance on the use of interim care orders. It may be argued that it is not essential from A's point of view that he goes to live with M now because he would be able to transfer his attachment to her later on if a placement with her were later to be approved by the court. However, looking at the matter from a different angle, there can be little doubt that if M is to have the best chance of caring for him, she needs to have the opportunity to get to know A as soon as possible and to form a bond with him. She was with him for a matter of days only, in the hospital immediately after he was born. He will have been developing rapidly since then and the once monthly contact which the local authority arranged thereafter would not enable M to build up a relationship with him to serve as a foundation for care of him in the future and thereby to improve his chances of being able to live with her.
  76. In the short term, there was no danger to A's safety, physical or emotional, in the prison unit and it was inappropriate, as I have said, to class the longer term issues as a danger to A's emotional safety of the type contemplated in the authorities. Accordingly, in my view, the relationship of A and M should have been preserved pending a final adjudication of the issues in the care proceedings. Concern as to delay should have been addressed by making arrangements for this final adjudication to take place promptly rather than by foreshadowing its determination by the making of an interim care order which kept M and A apart. It is for these reasons that I was in favour of allowing the appeal and substituting an interim supervision order for the district judge's order.
  77. Lord Justice Patten:

  78. I agree.
  79. Lord Justice Lloyd:

  80. I also agree.

Note 1   In this, as in all quotations, I have substituted initials for names.    [Back]

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