Simon Wilkinson considers two recent cases that have drawn into focus the importance of interm removal hearings, and in particular, the importance of interim threshold when the court is making its determination.
The cases are:
Both of these cases demonstrate the on-going importance of ensuring that proper thought, consideration and rigour is given to interim removal hearings: both in respect of approaching the evidential canvass with a critical eye and ensuring that these hearings are dealt with fairly and without bias in an ever burdened family justice system.
Re C (Permission to withdraw: Medical evidence: Interim threshold not crossed)  EWFC B37
This case, heard by Her Honour Judge Vincent, concerned a very young baby who was the daughter of 19 year old parents. She was born with the use of forceps and had some marks on her head but these quickly disappeared. The mother had joined various groups such as the teenage parenting group and all professionals who observed her care were positive about the care she was providing. Throughout the case the parent’s care was observed to be nothing other than above criticism.
A number of marks then appeared on the child’s face – initially by a health visitor. The child was seen by the GP who initially considered it to be a superficial blood vessel. The mother subsequently reported further marks and took photographs of them. She showed them to the health visitor. A week later a different GP saw the child (who did not have any bruises). That GP saw the photographs taken by the mother and felt that they clearly showed five bruises. A referral to a paediatric radiologist was made. In the referral letter the GP notes that the child was developing well and had good interactions with the mother.
A paediatrician – Dr J – who later saw the child (with no bruising) but saw the photographs also felt that the marks shown were consistent with bruises. That paediatrician subsequently raised concerns that the marks were bruises and that bruising in a non-mobile baby was indicative of inflicted injury.
That was on 23 April 2018. On 24 April the Local Authority applied for an Emergency Protection Order (which was made unopposed) and mother and child were placed in a mother and baby placement. Care proceedings were issued on 30 April 2018 and the matter listed for a hearing on 2 May 2018. Interim threshold found met on the basis Dr J’s report. An interim care order was made (neither consented to nor opposed by the parents) on the basis that the plan was for mother and child to live with maternal great-grandmother with mother being supervised by her. The father joined them a couple of weeks later.
Thereafter on 3 May, 9 May and 29 May 2019 the child was taken by her mother and great-grandmother to hospital with marks on her face. On each of those occasions the clinicians concluded that the marks represented blood vessels visible through the skin with no cause for concern. The marks all disappeared in a short space of time. As a result of this, and in light of the evidence that all observations of the parents’ interactions with their daughter [were] universally positive it became clear that an interim hearing on whether the interim threshold was met was needed. Due to the necessity for a meeting of the clinicians and the stresses on court lists, the case was not listed for consideration until 20 June 2018.
The hearing, evidence and outcome
The court heard evidence from the initial GP and from Dr J. After hearing the evidence the Local Authority applied to withdraw its application. The judgment sets out [para 19] that the Local Authority rightly anticipated that on the basis of the evidence…I would not have made findings on a balance of probabilities…and therefore…I could not be satisfied that there were reasonable grounds for believing that [the child] had suffered significant harm in her parents’ care. The application was granted.
The court is clear within its judgment that it neither criticises nor seeks to give guidance to medical and social care professionals about how to manage cases in the future.
The following points in respect of the medical evidence and sharing of information can however be taken from the judgment:
Lessons to be learned
At the conclusion of the case the legal representatives drafted a list of points which they felt would be helpful to share with the clinicians. HHJ Vincent was happy to endorse these and include them in her judgment, whilst being clear that each case turns upon its own particular facts and that she was not therefore intending to give guidance. The points bear repeating in full [from para 38]:
Lessons for lawyers
What is clear from this case is the obvious challenge that was available to the medical evidence at an early stage in the hearing. The temptation when dealing with cases of inflicted injury is for practitioners to simply advise their clients to concede that making of an interim care order and await the conclusions of the independently instructed expert. However as legal professionals one is under a duty to consider the evidence critically and to consider fully whether the disruption to the family’s lives that comes with the interim involvement of the Local Authority really is justified and made out on the evidence.
In order to do this the following should be borne in mind:
I would encourage all practitioners to consider the observations of leading counsel for the father (and others) in the Re C case as set out on Family Law Week
Re G (Children: fair hearing)  EWCA Civ 126
An application for interim care orders in respect of two children was listed before Her Honour Judge Carr Q.C. The children had been the subject of police protective measures following a domestic incident between the parents as a result of which the mother was arrested. The hearing was listed on the day that the police’s powers were due to expire. There was limited evidence before the court including no evidence from the parents and no analysis from the Guardian. The mother met her very junior counsel for the first time at court.
The judgment from the Court of Appeal sets out in detail the transcript of the hearing and should be read in full. Essentially:
Shortly after the hearing (which took place on 24 January 2019) the mother lodged her appeal, the case having been briefed to more senior counsel.
Peter Jackson LJ (giving the lead judgment and sitting with Moor J) granted the appeal. The following grounds of appeal were described as the ‘nub’ of the matter:
2. The learned Judge had subjected the mother to extreme pressure amounting to duress and undue influence through her comments in court and impacted on the advice given to her. As a victim of duress she did not freely consent to the ICO. This resulted in serious procedural irregularity.
3. The learned Judge's comments gave a strong indication she had pre-judged the application and prejudiced a fair hearing, breaching the Mother's Article 6 and 8 rights
Within a typically forthright judgment Peter Jackson LJ makes the following observations:
- He dismissed the submission made by the Local Authority that the correct approach would have been an application discharge in circumstances where it is alleged that a judge brought improper pressure to bear: this issue had already been determined – Re R (Contact: Consent Order)  1 FLR 123
- Counsel for the Local Authority (who appeared in the court below) accepted that one interpretation of the transcript supported the complaints made by the mother and she was not able to suggest any other possible interpretation.
- It is entirely proper for judges to indicate provision views in accordance with the overriding objective of the Family Procedure Rules 2010. What is not permissible is for judges to place unreasonable pressure on a party to change positon or appear to have prejudged the matter. What happened in this case fell well outside the proper exercise of the court’s powers.
- Given the matter was urgent and there was little court time it was well open to the judge to deal with the matter on submissions with a full listing in short order; however that is not what happened – paragraph 26 of Peter Jackson LJ’s judgment sets out starkly all that went wrong within the hearing.
- Criticism is also made of the positions taken by the Local Authority, the Guardian and the father on appeal which show a failure to understand the nature of the overriding objection or the requirements of a fair hearing.
In a short supplemental judgment (supported by Peter Jackson LJ), Moor J also raises criticism that the Court of Appeal was informed by counsel for the Local Authority that it was commonplace in certain courts to warn parent that, if the application for an interim care order was opposed, the court may have to make findings as to facts in dispute…that…would then stand for all time. Moor J stresses the difference between the legal basis for the making of interim care orders (section 38(2)) and final care orders (section 31(2)) and much lower bar of ‘reasonable grounds’ in the former. He urges caution on courts making reference to the significance of conclusions drawn at the interim stage as such comments may appear to the parents to be a form of pressure [para 34].
This case is concerning for a number of reasons and should serve as a stark reminder for all parties of the need to ensure fairness and procedural propriety at interim care order hearings. I make the following observations:
Whilst in my experience this is not as common as problem as may have been suggested by counsel for the Local Authority, there is an obligation on all parties to ensure that the court is not allowed to err in law. Notwithstanding the inexperience of mother’s counsel, which may have led him to either be uncertain or reluctant to correct the circuit judge, the other advocates in the case perhaps ought to have set out the correct legal position so as to avoid the mother feeling as though she were having undue pressure placed upon her.
5. It is important, I would suggest, for the initial orders to be as accurate as possible. Each standardised case management order has a section relating to threshold. Where possible, those representing parents should be clear the basis upon which the interim threshold has been adopted by the court whilst also ensuring that the order is plain that no findings of fact have been made and any threshold determinations at the interim stage are made to the lower evidential standard set out in section 38(2).
The above two cases highlight in stark terms the importance of interim removal hearings, both in respect of considering the evidence before the court and interim threshold and also the importance of procedural fairness and the responsibilities upon all advocates to stand firm in the face of over-robust judicial case management.
Whilst the test for interim separation is well rehearsed, perhaps little focus is and has been placed upon the test for interim threshold. Practitioners must not underestimate or downplay the significance of interim removal hearings – the importance to the children and families who are affected and also to the pressures on the family justice system as a whole from fully fledged care proceedings which can be dealt with sooner should not be underestimated.
Similarly, with the ever-increasing number of care proceedings being issued (as recent figures have suggested), there is a rise in the number of interim removal hearings coupled with ever-increasing pressures on court time. Nevertheless, all involved within the system have a duty to uphold the fundamental principles of fairness and lack of bias in order to ensure that the families and children for whom the system is designed are best served by it.
Parklane Plowden Chambers
22 February 2019
A pdf of the Case Note can be downloaded here.