Tag Archives: interim care orders

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.

 

 

Taking your child away ‘in the interim’ – what does this mean and how does it happen?

In this post we shall look at the ways the state is allowed to take a child away from his/her parents BEFORE all the relevant evidence has been seen and heard by a Judge at court hearing.

If your child is currently AT HOME under a care order and the LA wish to remove him or her, please see this post ‘Child at home under a care order’ 

If you agree to your child being removed from your care, your child will be accommodated by the local authority under section 20 of the Children Act 1989.

If you DO NOT AGREE, there are only two ways your child can be taken away without your agreement:

  • by the police using their powers under section 46 of the Children Act 1989, for a maximum of 72 hours only
  • by an order of the court
    • Emergency Protection Order (EPO) under section 44 of the Children Act 1989; or
    • Interim Care Order (ICO) under section 38 of the Children Act 1989.

Taking children away from their parents before all the evidence has been looked at is obviously one of the most difficult and controversial issues in care proceedings.

This is a really helpful post by suesspicious minds: ‘Social Services are asking me to put my child in care and they want me to do it now’.

 

When is it right to remove a child on a ‘interim basis’ i.e. before all the evidence has been heard and considered by the Judge at a Final Hearing?

These cases are often very finely balanced – if a child is taken from home and goes into foster care for a few months and then is returned home, this obviously has the potential to cause the child (and the parents) a lot of emotional upset. However, if a child isn’t removed from home when he should have been, the child could be left in a dangerous situation for a number of months while a final hearing is arranged at court.

So this issue has generated a lot of discussion and case law, particularly as Local Authorities reacted to the tragic death of Peter Connelly  in 2007 and were keen to intervene to prevent another child dying or being seriously injured.

 

Removal under an Interim Care Order – ICO

First stage

The first and important thing to be very clear about – the court CANNOT agree with a LA’s plan to remove  a child from home before the final hearing under an ICO, unless it determines an interim care order is lawful in the first place.  Interim care orders come under section 38 of the Children Act 1989. The court must have ‘reasonable grounds’ to believe that section 31(2) is satisfied i.e. that the child has suffered or is at risk of suffering significant harm.

We have examined the concept of ‘significant harm’ in more detail in another post.

Second stage

If the court does find significant harm has happened or is likely to happen, it then goes on to the second stage; is removing the child the right thing to do now?

This issue has generated a lot of case law.

  • The case of Re GR in 2010 pulled together what the case law was saying about when interim removal was appropriate.  See also Re S (children) (interim care order) [2010] EWCA Civ 421
  • Another useful case is the Court of Appeal’s decision in K (Children) in September 2014.
  • In the case of NL in 2014 the court allowed an appeal against an interim removal because of very serious irregularities in the procedure and a failure by the Magistrates to properly consider the legal test.
  • Procedural fairness is always very important. See G (Children: Fair Hearing) [2019] EWCA Civ 126 – here the mother’s consent to her children’s removal was secured by inappropriate behaviour on the part of the judge : ‘in the form of inappropriate warnings and inducements. Regardless of the fact that the mother was legally represented, she did not get a fair hearing. There has been a serious procedural irregularity.

We can summarise:

  • separating a child from his parents at this stage in the proceedings is a very serious matter and must only be contemplated if the child’s safety demands immediate separation;
  • ‘safety’ encompasses a wide range of issues, including physical and emotional; and
  • these safety issues must be identified with clarity so the evidence relating to those issues can be properly analysed (see K (Children) para 34, 36);
  • removing the child from his parents  must be proportionate to the risk of harm to which he will be exposed to if he goes home;
  • Whether or not a decision is proportionate is decided by cross checking what other options are available; is a ‘more proportionate’ option than separation available? (see K (Children) para 37);
  • the court must take care not to get overwhelmed by a feeling of ‘urgency’, if this is at the expense of taking the necessary time to make sure the relevant issues are identified (see K (Children) para 30).
  • that the decision taken by the court before a final hearing, must be restricted to those issues that just can’t wait – the court must not attempt to deal with issues that can only be properly argued about at a final hearing. 

The reason that the court must not try to look at the wider issues in the case at an interim hearing is because it just wouldn’t be fair to anyone to do so. Interim hearings are usually arranged urgently and you will be lucky to get any more than a day of the court’s time to hear them. There simply won’t be time to give all the issues the attention they deserve. However, the court can’t ignore likely future outcomes and when 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.

Proportionality is a key concept in family law, arising from Article 8 of the European Convention on Human Rights [ECHR]. Interfering with a child or parent’s right to a family life can only be allowed if it lawful, necessary and proportionate. If you want to read more about the impact of the ECHR on family law, here is a useful article.

Therefore, if the LA wanted to take a child away at an interim stage because there were concerns about an untidy house or couple of incidents of shouting, that almost certainly would not be considered proportionate. But if the child had a broken arm and no one could explain how it happened, interim removal almost certainly would be considered proportionate.

 

Interim removal of babies

The most difficult cases are those involving new born babies. This is obviously an extremely serious and draconian intervention in family life. Hospitals are unlikely to be willing to keep mother and baby for more than a few days after they are both fit to be discharged.

There appears to be a worrying trend that local authorities will come to court for interim removal hearings shortly after the baby’s birth without information about placements where the baby could remain with at least one parent. They justify this on the basis that ‘it is not our plan’. Regardless of what the LA does or does not wish to happen, they have an obligation to provide relevant information to the court to enable it to make the right decision for the child. A great deal of time and energy is often wasted at court chasing information which could and should have been provided in advance.

See further the case of L (A Child) [2013] – which examined when removal of a new born baby is lawful. In this case, the baby was returned to his mother’s care pending final hearing.

 

What happens next?

The Court of Appeal reminds us that even when the court has decided it is right to make an interim care order it must think about what is going to happen to the child after the order is made – where is the child going to live? What kind of contact will the parents have? This evidence is ‘bound to be relevant to the welfare analysis and proportionality evaluation’.

 

 

Emergency Protection Orders

There is obviously going to be some overlap between cases where the LA apply for removal under an EPO or an ICO.

One important difference between the two is that an EPO can only last for 8 days when it is first made and then can only be extended for a further 7 days. Interim care orders can last for a lot longer. See this article by Andrew Pack about how time limits for ICOs have been extended by the Children and Families Act 2014.

EPOs should only be used when a situation is urgent. It is essential that courts consider and apply the guidance in the case law about how to approach EPOs, given the serious consequences of making such an order.

See re X (Emergency Protection Orders) [2006] 2 FLR 701. Here the Judge referred to the guidance of an earlier case and made it clear this guidance was ‘essential reading’ for any court making a decision about an EPO.

See paragraph 64 of his judgment onwards:

Very serious reasons needed for an EPO

  • An EPO, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. The court shouldn’t make an EPO unless its necessary and no other less radical form of order will keep the child safe; ‘imminent danger’ to the child must be ‘actually established’.
  • Both the local authority and the court have a very serious responsibility to approach every application with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.

 

The EPO must be a proportionate response to the concerns about the child

  • Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.
  • If the real purpose of the local authority’s application is to enable it to have the child assessed then they should think about making an application for a Child Assessment Order under section 43 of the Children Act 1989.
  • No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte [without notice to the other side] application the court should think about making an order for only a very short time.

Proper evidence is needed to justify an EPO and parents need to know what it is

  • The evidence in support of the application for an EPO must be full, detailed, precise and compelling. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
  • Save in wholly exceptional cases, parents must be told that the matter is going to court and given advance warning of the evidence the LA will rely on.
  • Where the application for an EPO is made [without notice] the local authority must make out a compelling case for applying without first telling the parents notice. An application [without notice] will usually only be considered OK  if the case is genuinely one of emergency or other great urgency.
  • The evidential burden on the local authority is even heavier if the application is made [without notice]. Anyone who applies to the court without the other side knowing about it, have a duty to be honest and open about all the relevant circumstances known to them.
  • Section 45(7)(b) of the Children Act 1989 permits the [court] to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the [court].
  • The mere fact that the [court is under obligations to record the evidence] is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made [without notice] are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the [court] either before or during the course of the hearing; and (ii) what legal authorities were cited to the [court]. The LA’s lawyers should act quickly to provide the parents or their lawyers copies of any material considered by the court so the LA lawyer should make a very good note of the proceedings.

Is there an alternative to an EPO?

  • Section 44(5)(b) of the Children Act 1989 sets out that the LA can only make decisions about the child if it is  ‘reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the LA shall remove children from their parents under s 44(4)(b)(i) ‘only … in order to safeguard the welfare of the child’.
  • The local authority must think very hard about whether or not removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The [court] decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it is a very good idea for all LAs to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.

 

LA needs to keep the case constantly under review and arrange proper contact.

  • The LA has a positive duty under Article 8 of the ECHR to keep under review any decision to keep a child out of his parents care and to think about how they could be reunited. Secion 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to [the local authority] that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.
  • Section 44(13) of the Children Act 1989 requires the local authority, subject to any direction the court makes under s 44(6), to allow a child who is subject to an EPO ‘reasonable contact’ with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.

 

Further Reading

For information about what the courts expect from practitioners at an urgent hearing and how court bundles should be prepared, see this guidance from Cobb J in 2014.