Interim care orders – What are they?

An ‘interim care order’ (ICO) is an order that can be made by the court before the final hearing, when all the evidence is put before the Judge and a final decision is made about your child’s future. Final hearings often take a while to organise as usually a lot of evidence has to be gathered – assessments of the parents and other family members will usually be needed so the court has the best information before it to make a decision that’s right for the child. There may be a need to get hold of police and medical evidence.

When Children Act 1989 was written, people thought care proceedings from start to finish would be over in a few months. Therefore, the initial plan was that an ICO would hold the fort for a short period of time until the final hearing could be listed and a final care (or supervision) order made.

But what happened shortly after the Children Act came into force,  was that care proceedings began to take a lot longer than a few months to sort out – the average case was taking a year or even longer to resolve. The government became so concerned about this that they enacted the Children and Families Act 2014; section 14 provides that care proceedings must finish as soon as possible or take no more than 26 weeks.

There is an interesting article here from the President of the Family Division about the history of the family courts and the efforts that have been made to streamline family proceedings. 

Interim care orders are found at section 38 of the Children Act 1989. Under section 38(2)  the court shall not make an interim care order or interim supervision order under this section ‘unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)’ i.e. that the child has suffered or is at risk of suffering significant harm.

Why do the Local Authority want an ICO?

Only a care order or interim care order allows the LA to share parental responsibility with the parents and in reality it puts them in the ‘driving seat’ when it comes to making decisions about your child. However, an ICO doesn’t mean you lose parental responsibility – the LA must still consult you about decisions it wants to make about your child.

In some cases concerns are serious and there isn’t much trust or co-operation between the parties. In a case like that the LA are very likely to ask for an interim care order and may even ask that the child is removed from home following that order.

If the LA are saying they want an interim care order to remove your children from your care,  see this post on interim removal..

 

How long can an interim care order last?

Before the Children and Families Act 2014 became law on April 22nd 2014, an initial interim care order could  be made at the first hearing for 8 weeks and then could be renewed every 4 weeks for another 4 week period.  This lead to a lot of orders being renewed ‘administratively’ i.e. the parties agree at the outset they won’t object to any further renewal. This saved the parties from  physically coming back to court every 4 weeks for another hearing, but still generated a lot of paperwork as fresh interim care orders had to be printed out every 4 weeks.

If those who first drafted the Children Act realised how long care proceedings would become, it is doubtful they would have opted for this 4 week period.  The change to the law means that a court can make an interim care order or interim supervision order for a time specified in the order.  This could either be ‘until the proceedings are over’ or for a fixed period of time – for example until listing a hearing where the parents want to argue against the ICO continuing.

For more discussion about this issue, see this article by Andrew Pack.

The stages of care proceedings – Is an interim care order before the final hearing inevitable? [Short answer – ‘No’]

See Practice Direction 12A of the Family Procedure Rules 2010. The aim of government reforms in 2014 was to speed up care proceedings which were taking a year or more on average to resolve. The reformed process attempted to set out these stages.

  • Stage 1 DAY 1-2  -the application is issued by the local authority (LA) and a decision is made about which is the right kind of court – magistrates, or district/circuit judge? This should take 2 days and the court will list the next hearing – the Case Management Hearing.
  • Stage 2, DAY 10-12  – an Advocates Meeting (meeting with the lawyers, social worker and guardian) no later than day 10 to make sure everyone is ready for CMH on day 12. On the ground, i am not sure this is happening, and certainly where an application is made urgently there is often not time to arrange a separate Advocates Meeting and the parties must meet and discuss matters at court. There are now about 18 weeks before Stage 3 so it is possible for the court to list Further Case Management Hearings (FCMH) depending on the complexity o the case and the need for expert evidence etc.
  • Stage 3 WEEK 20 – must be no later than 20 weeks from the date of the application and is called the Issues Resolution Hearing (IRH). This should not be just a ‘directions hearing’  but instead a ‘genuine and informed attempt at resolving issues’. The hope is that some cases can be agreed at this hearing. If you can’t agree at the IRH, the court will set dates for the Final Hearing, where the court hears evidence from all the parties, considers the written evidence and makes a final decision.
  • FINAL HEARING BY WEEK 26 – You can get permission to go beyond 26 weeks but you will have to convince the court this is necessary and give clear reasons.

It certainly not inevitable that an ICO will be made before the Final Hearing. . A lot can happen at the first Case Management Hearing. If everyone agrees to work in co-operation with one another the LA are often content not to push for any kind of order but simply timetable the case through to a final hearing. Parents may agree to sign up to a ‘schedule of expectations’ – a list of things they need to do or stop doing in order to keep their child at home. If everyone is happy that the situation can be managed over the coming months without a care order then there is no need for such an order and it shouldn’t be made.

Schedule of expectations/written agreements.

If you do sign any kind of document that sets out in writing what is expected of you before the final hearing, do be careful to read it carefully and only sign if you think that you are going to be able to stick to its terms. If you don’t go on to do what you agreed to do in the document,  this is usually a big source of concern to social workers and the court. So if what is expected of you seems unreasonable or just not possible to achieve, make sure you speak up at the time or tell your lawyer.

Written agreements should not be used to get a care order ‘by the back door’. See the case of Re W [2014] for further discussion of this.

There is also a very helpful blog post by suessipcious minds which offers more advice to parents who are being asked to sign a written agreement. 

 

Can I argue against an interim care order?

You are entitled to argue that an ICO should not be made at all, or if it has already been made you are entitled to argue that it should be discharged. However, this is a tricky situation and you need to take advice from your legal team about the best way forward.

If for example an ICO has already been made but nothing has changed and you have no fresh evidence, your chances of success are pretty limited unless you are arguing that the Judge got the law or facts wrong.

If the LA seek an ICO at an early stage and you don’t agree this is necessary you will need to consider whether you argue against it now or wait until the final hearing when hopefully all assessments will be complete and all relevant evidence is before the court.

It is not always a good idea to try and argue against the LA case at an early stage where you may not have all the evidence you need and there may be a risk that findings are made against you which could be hard to shake later on. However, it is every parents’ right to argue against the making of an ICO if they wish and no judge or lawyer should put unreasonable pressure on a parent to back down – note the serious problems which flowed from a Judge who subjected a mother in care proceedings to ‘improper’ pressure and was rude to her barrister G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019)

The court commented in this case that it should be rare in hearings about ICOs for facts to be found which would determine the cases at a final hearing as the test for a ICO is different to the test for a full care order; an ICO only requires the court to have ‘reasonable grounds’ to think that a child is at risk of harm or has suffered harm.  I am not so sure about that in reality. If you argue against an ICO being made it seems inevitable that you are asking the court to make decisions about certain facts; if the decision goes against you that is something that risks hardening as the process continues and will be more difficult to unpick at a final hearing.

The best thing to do is make it as clear as you can as soon as possible to your solicitor/barrister that you do not accept the ICO and listen to their advice about what realistically you can achieve by arguing against the ICO before the final hearing takes place.

 

Power to exclude people from the child’s address in an ICO

Under section 38A of the Children Act a court can put an ‘exclusion requirement’ in an ICO. This is defined as

  • making someone leave a house in which he/she lives with a child
  • stop someone entering the house where the child lives
  • keep someone out of a defined area near the house where the child lives

The court can make this ‘exclusion requirement’ if the following conditions are met:

  • there are reasonable grounds to believe that if the person is excluded, the child will stop suffering significant harm or no longer be at risk of suffering significant harm AND
  • there is someone else living with the child who can look after him/her and agrees to the exclusion requirement.

The court can attach a ‘power of arrest’ to the exclusion requirement under section 38A(5) which means the police can arrest anyone believed to be in breach of this requirement, without needing a warrant for their arrest.

Can the court make an ICO for a child who is 17 years old?

A ‘child’ is defined as a person who is under 18 years of age. However, once children are teenagers, things get more tricky in terms of imposing court orders on them – generally the court is going to be reluctant to make any orders about children who are 16 or older and there are clear statutory limits about what orders can be made in other kind of proceedings about teenagers. The impact of Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112 made clear that the older a child became, the less likely it was that orders would be made with which s/he did not agree, in proceedings which had been brought by adults.

A full care order cannot be made once a child is 17 – see section 31(3) of the Children Act.  However if the full care order was made before the child is 17, it carries on until his 18th birthday – see ection 91(12) of the Children Act 1989 which provides that “any care order, other than an interim care order, shall continue in force until the child reaches the age of eighteen, unless it is brought to an end earlier”

So what is the position for interim care orders? The court looked at this question in the case of Q (Child – Interim Care Order – Jurisdiction), Re [2019] EWHC 512 (Fam). The court made an ICO with regard to 4 children, one of whom was going to be 17 soon after the order was made. The question was – can the ICO continue for the child once she is 17 years old?  The parents and the Guardian all objected to this, pointing out that this meant the child would be subject to a non-consensual order without the level of scrutiny that would be required when making a full care order.

The court agreed and  found at para 28 that no interim care or supervision order will endure beyond the date of a child’s seventeenth birthday or the date of a child’s marriage if aged sixteen. 

However, that did not mean that continuing the care proceedings, even if an ICO or final care order could not be made was impermissible. The judge commented:

In my view, there is a distinction between the making of interim public law orders on an adjournment where a child has turned seventeen and the continuation of the section 31 proceedings themselves. I remind myself that no court seised of public law proceedings is required to make either interim or final public law orders. It may decide that a section 8 order or indeed no order is an appropriate disposal at either an interim or final stage. Whilst no interim or final public law order would, on my analysis of section 38(4), be available in respect of a seventeen year old child (or sixteen if married), I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings.

 

 

15 thoughts on “Interim care orders – What are they?

  1. tina durn

    i am in d process of contesting a care order…my children should never have been removed from my care….their school attendence was the catalist because i was ill n they were staying with their father during my illness n he was not taking them tp school…i was hairstrand tested which came back positive for low to medium levels of cocaine…iv never taken or been under the influence of drugs around my children but the s.s have now deemed me a bad mother even though my kids are high achievers at school n are well.mannered and polite good kids…i dont understand and my kids dont either they have told s.s that i take care of them.well and they want to.come home but no1 is listening to.them or me.

    Reply
    1. Sarah Phillimore Post author

      I assume you have a lawyer that you can trust and work with? If not, you need one urgently. If you don’t accept the hair strand test results, ask if you can get another test. If that is the only evidence against you as a parent I would be surprised if that could justify the removal of your children. You urgently need to understand exactly what is the case against you and what evidence you can provide to argue against it.

      Reply
  2. ian josephs

    Most of the parents who contact me after an interim care order has been made on their children say their lawyers told them the could not speak in court. Most also said that their barristers neither agreed with nor opposed the order so that the orders were nearly always made and the were taken away to secret destinations.

    Reply
  3. Sarah Phillimore Post author

    Really Ian? Really?

    Might it actually have gone a bit more like this?

    ME BARRISTER: the evidence against you is looking pretty strong, if you contest the ICO I don’t think you will succeed and you might risk getting some nasty findings made against you. Let’s not go down that route, lets see what arguments we can make at a final hearing when all the evidence is in, but of course if you want to, we will.

    PARENTS: OK

    So we neither agree to nor contest the order but agree a timetable for further assessments and statements etc.

    Children then go off to ‘foster care’ or as you prefer to call it ‘secret destinations’. Yes, usually parents don’t know where the foster carers are as I am afraid some parents might not use that information responsibly. But contact will be arranged between parents and children.

    Reply
  4. Amandahodgkinson

    Hi my two children were taken into care in June 2015 because of things am to ashamed to say on here cos I fear I will be judged.But have admitted my defaults to s.s and people involed with my children.Am in the process of I.c.o at the moment am looking for ways to prove my self I’ve got a job,painted,cleaned and set up the house.Ive attended every appointment going.Done all the assessments the want me to do.Gone on all different kind of courses such as parent,ADHD,asd as my children have special needs.I wasn’t told to do them just did it myself am just wounding am I missing somethink that I haven’t done yet if I am could someone tell me I would be great ful for any advice all I want to do is prove myself and get my children back Thanx

    Reply
    1. Sarah Phillimore Post author

      It doesn’t sound like there is much more you could do! What are the LA saying about the work you have done? It is really important that they tell you if they want you do to something else or something different. If they don’t agree that you are making changes they MUST explain why so you can understand where they are coming from. What does your solicitor say? Its really important that you have a good relationship with your lawyer and that you can trust their advice.

      I hope you get a good outcome at the final hearing – it is quite unusual for parents to agree that they have problems they need to fix so I hope you get credit for working so openly and honestly. If the ICO was in June then the Issues Resolution Hearing (IRH) should be in November and the final hearing (if needed) should be before Christmas, so make sure that your final evidence is very clear about everything you have done and the changes you have made.

      But if everything is going well and everyone is agreed, the proceedings can stop at the IRH and they don’t need to go on to final hearing.

      Reply
      1. Amandahodgkinson

        Thanx for replying back I can’t seem to get hold of my s/w i tex her ring her and leave voicemails but get no reply I keep everyone informed I feel am the only one that communicates with everyone which i dont mind my lawyer can’t understand that there complaining about me doing things wrong but the wont help me or instructe me even tho they been told by a psycologist that I have aspegues and need guideness don’t get me wrong am a great mum been 1 parent for 12 yrs just made mistakes that I take to my grave with me can’t stress that enough to people my lawyer said he Speke to s/w lawyer I got intouch with kids guardian who told me the same my I.r.h is in dec my final hearing is feb but it feels like there something am not doing but can’t seem to put my finger on it at the moment s/w knows that both my kids and me have high anxiouity cos were inseparetable kids have said the want to come home and I say I want them back all the time I’ve even sat in her office for hours only to be told she at meetings don’t get me wrong I know there over stretched and have other family’s but I just get the feeling the don’t want to help me sorry don’t mean to offened anyone but any advice off people would be appercepated Thanx just going out of my mind thinking of what I’ve missed I’ve got an endless list that I have gave to everyone eg s/w,lawyer,l.a.c meeting,ect

        Reply
        1. Sarah Phillimore Post author

          Ok, take a deep breath. I know it is easy for me to say but please try not to get too worried and stressed.

          I am afraid it is a very common complaint that it is difficult to get hold of SW. I think that is most likely due to the fact that they are massively overworked and have case loads that are far too big for them to manage properly. But that isn’t much comfort for you.

          Make a note of when you try to call, leave voicemails etc so if you need to rely on that later you can.
          If you don’t understand what you need to do, make an appointment to see your solicitor and go through the threshold document again. What are the SW saying is the problem?
          The fact that you are prepared to admit you made mistakes, is very positive. A lot of parents can’t even get to that stage.
          Can your GP help with your anxiety? Medication might help in the short term or you could be referred to some therapy/counselling/CBT.

          It should be clear by December at the IRH the way the case is going. You just need to grit your teeth and try to get through the next few months. Be kind to yourself, get whatever help and support you can.

          Reply
          1. Amandahodgkinson

            Thanx for your advice i understand that s/w is over streached I have kept notes of times I’ve rang ,left voicemails ,ect I have kept notes of everythink since June I have 3 books full my lawyer has gone over the threshold a couple of times with me to put it simple so am not judged the s/w said I failed to protect my kids although this is all historic cos it happened afew years ago it got bought up this year cos of somethink that were said I did admit to s/w ,police,lawyer,kids guardian,g.p.and others that are involed I admited my mistakes in June my g.p put me on medication for depression but it’s hard to get the correct medication to suit as its limited cos of my epilepsy medication I go to c.b.t I’ve been going for the past month

  5. Mariah

    I was made to go to an ICO with my child only because I failed to contact social services for two weeks whilst grieving because my aunt died of cancer however I informed them of this situation and they Still sent me here and not only that but I left my baby in th care if the ICO support workers and they ailed to give my son his heart medication. What kind of steps can I do to appeal, discharge or eventually leave the ICO. They out his life at risk as I have never forgotten to give him this vital medicine.

    Reply
    1. Sarah Phillimore Post author

      It’s not possible to advise you here as I don’t know your case – but I will say at the outset I find it hard to believe that the ‘only’ reason for your child being subject to an ICO is that you were grieving for your aunt. If you want to appeal or discharge the order you will first need to understand the reasons why it was made and what you can do to challenge those reasons. Do you have a lawyer? If so, talk to them and get them to explain to you what is going on.

      Reply
      1. Angelo Granda

        Mariah, did the Social Worker tell you the contact details of an advocate in your area ? You and your son have the right to have one who can go to all the meetings with you and mediate/intervene on your behalf with the various professionals and care workers. Cases go so wrong when guidelines like that one are not followed.
        Often the SW’s don’t take much notice of what parents like you say and also they are not medically qualified and don’t understand how important doctor’s care plans are. A mediator would have been able to help you communicate with the workers and stress the importance of the medication for your son.
        In your case , your son has special medical needs with his heart problem.You should go to your G.P. immediately and ask him to contact the carers in writing in order to safeguard him.Or he could end up on the danger list in hospital . I am sorry if my advice frightens you but do as i advise for the baby or the consequences may be serious. Do it today!
        You have to keep a very careful eye on him; i would not leave him alone with them unless absolutely necessary. Make a note of it whenever they neglect him.
        I am glad you are not separated from him anyway because the maternal is vital.WHERE HAVE THEY SENT YOU TO? How old are you?

        Reply
  6. Angelo Granda

    Correction,last paragraph: The maternal bond is vital.
    My advice is that you should not have to get out of the ICO. The idea is to support you and the baby so do your best to work with them. But independent advocacy is essential .It is the mediators job to explain to you what is going on.
    Don’t forget Sarah’s advice either and get a lawyer if you can. The lawyer might be able to make them follow frameworks and keep things on track.
    As Sarah says ,we don’t know you case and can only give general advice.
    Follow this link for proper advice:-

    https://www.frg.org.uk/

    Reply

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