K (Children)

24 Sep

This case was decided by the Court of Appeal at the end of July 2014 and judgement was handed down on 2nd September 2014. It is reported at K Children [2014] EWCA Civ 1195 and www.familylawweek.co.uk/site_aspx?i=ed132053.

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This case was decided by the Court of Appeal at the end of July 2014 and judgement was handed down on 2nd September 2014. It is reported at K Children [2014] EWCA Civ 1195 and www.familylawweek.co.uk/site_aspx?i=ed132053.

It raises a lot of interesting points which are worth considering in their own right in later blogs. For the time being, I’d like to concentrate on the making of the interim care order in this case.

The history is described in the judgement. Two boys, now aged 12 and 15, have been the focus of applications before the county court (now the family court) for most of their lives. It had got to the point where they were ordered to live with their father. They absconded and were returned to the care of their mother. The case was returned to court.

An order had been made for a report from the local authority under s.37 Children Act 1989. A s.37 report requires the local authority to report to the court on whether it should:
a. Apply for a care or supervision order;
b. Provide services for the child or his family; or
c. Take any other action with regard to the child.

The report usually has to be prepared within 8 weeks which would normally allow for plenty of investigation and consideration of the family’s circumstances. However, s. 38 (1) (b) Children Act 1989 allows the family court to make an interim care or supervision order if it has made a direction for a report under s. 37(1) Children Act 1989. This is the only occasion when a court can make an ISO or ICO in the absence of a formal application by a local authority.

It seems like a very long time since the coming into force of the Children Act 1989; one of the changes it brought about was that the only way children could be removed from the care of their parents (and very often their families) was via the procedures set out in the Act. Prior to the Children Act there were numerous avenues by which courts, from the magistrates court to the High Court, could make care and supervision orders. The evidence upon which these orders were made varied significantly. The Children Act 1989 strove to change all that.

In 2014, if a local authority makes an application for a care order or a supervision order (or an EPO) the application form ensures that a certain amount of information is given. This includes consideration of threshold and an analysis of why the application is being made. If a court decides to make an interim order under s. 38 (1) (b), all that vital information is missing.

It is clear that if a court is considering making an interim order under s. 38 (1) (b), it must be just as rigorous when carrying out its enquiry as if it had an application by a local authority before it. I would say that the burden on the court may well be even greater. The Court of Appeal made it clear that if a court is considering making an interim care order which would have the effect of removal of children from their families into public care there must be:
• Proper case management to determine the issues which have arisen and in respect of which the court is going to be asked to use its powers
• Consideration of Family Procedure Rules Part 12 and in particular Practice Direction 12A
• Proper analysis of the tests to be applied before making an ICO involving removal of children from their families: the interim s.38 (2) test relating to significant harm; whether the child’s safety demands immediate separation; whether removal is in the child’s best interests; and whether it is proportionate.

Final point: the emphasis from the Court of Appeal is that decisions of the Family Court (especially at an interim stage) can be far reaching and should not be taken without a comprehensive welfare analysis. Courts have been told to ensure that care cases are moved through from start to finish in 26 weeks, but this ought not to be done in such a way that decisions are taken without proper analysis.


Margaret Pine-Coffin

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