L (A Child), Re

Factual and Procedural Background

This appeal concerns the making of an interim care order for the immediate removal of a nine-year-old child ("the Child") from the only home she has known, following a without notice, or short notice, hearing. The Child has been in the care of her maternal grandmother and step-grandfather ("the Guardians") since she was three months old, under a special guardianship order granted in 2006 after a contested hearing. The Child's mother ("the Mother") has consistently opposed the Guardians' care and sought contact with the Child, resulting in prolonged and complex family proceedings over many years.

Throughout the proceedings, there has been significant conflict between the Mother and the Guardians, particularly regarding contact arrangements and disclosure of information about the Child’s welfare and education. The Guardians have repeatedly resisted court involvement and failed to disclose key information, including changes in the Child’s school and residence. The court engaged a child and adolescent psychiatrist and appointed a children's Guardian, who expressed serious concerns about the dysfunctional adult relationships affecting the Child.

Between 2008 and 2012, multiple hearings were held before Parker J, who expressed increasing concern about the Child’s emotional well-being, the Guardians’ conduct, and the lack of progress in establishing independent contact between the Child and the Mother. The Child was made a Ward of Court in February 2011. Despite numerous court orders, the Guardians continued to withhold information and obstruct contact.

In October 2012, Parker J issued a judgment highlighting the risk to the Child’s emotional welfare and warning the Guardians that removal from their care into foster care might become necessary. Following a section 7 welfare report commissioned by the local authority, events in December 2012 led the local authority to seek an interim care order for the Child’s immediate removal from the Guardians’ home. This was done by a without notice hearing on 14th December 2012, followed by an on notice hearing the same day, which confirmed the interim care order for eight weeks.

Legal Issues Presented

1. Whether the making of an interim care order sanctioning the immediate removal of the Child from the Guardians' care at a without notice hearing was justified and lawful.
2. Whether the judge erred in failing to properly weigh the negative impact upon the Child of a precipitate removal and in failing to afford paramount consideration to the Child’s welfare.
3. Whether the procedural steps taken, including the use of section 37 of the Children Act 1989 and conducting a without notice hearing without disclosure to the Guardians, were lawful and compliant with statutory requirements and procedural fairness.
4. Whether the judge failed to provide adequate reasons for the orders made and improperly determined final issues at the interim care order stage.

Arguments of the Parties

Appellants' Arguments

• The interim care order and immediate removal were unjustified and plainly wrong.
• The judge failed to properly consider the harm caused to the Child by sudden removal and did not give paramount consideration to the Child’s welfare.
• The eight-week duration of the interim care order was inappropriate.
• The hearing to determine the interim care order was flawed because it was conducted without notice, in closed session, and without providing the Guardians with key documents such as the application, the care plan, and the section 7 report.
• The Guardians were denied the opportunity to be represented and to make full submissions at the without notice hearing.
• The judge failed to give adequate reasons for proceeding as she did.
• The judge effectively determined final issues at the interim care order stage, pre-empting the final hearing.
• Procedurally, the use of section 37 was impermissible as the local authority had already provided a section 7 report and intended to issue care proceedings.
• The failure to comply with the Public Law Outline and statutory procedures deprived the Guardians of a fair hearing.
• The without notice hearing was so short and lacked substantive submissions that it appeared the judge had pre-ordained the outcome.
• There was no equality of arms between the parties.
• The process amounted to an executive action removing the Child without a proper trial or fair hearing.

Local Authority's Position (as inferred from the report)

• The Child’s welfare required immediate protection due to emotional harm risk in the Guardians’ care.
• The local authority sought an interim care order based on the section 7 report and recent events, including the Guardians’ obstructive behaviour and the Child’s failure to attend contact sessions.
• The use of section 37 and a without notice hearing was justified by the urgency and risk of harm.
• The local authority intended to follow the without notice hearing with an on notice hearing to allow full representations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the extensive factual background, the history of proceedings, and the long-standing concerns about the Child’s welfare in the Guardians’ care. It acknowledged the complexity and dysfunction within the family and the significant emotional harm risk to the Child, as found by Parker J and previous judges.

The court examined the statutory thresholds under sections 37 and 38 of the Children Act 1989, noting that the threshold for a section 37 direction is low ("may be appropriate") and for an interim care order under section 38 is "reasonable grounds for believing" the child is suffering or likely to suffer significant harm attributable to inadequate care.

The court found that Parker J was plainly entitled to conclude that these thresholds were met based on the evidence, including the Child’s emotional harm and the Guardians’ behaviour. The judge’s decision that the Child’s safety required immediate protection by removal was not plainly wrong.

Regarding procedure, the court analysed the use of section 37 to trigger the court's jurisdiction and the conduct of the without notice hearing. It accepted that although the local authority had a section 7 report, the judge’s use of section 37 was not impermissible, especially given the urgency and the Child’s status as a Ward of Court. Alternative procedural routes existed but were not mandatory in the circumstances.

The without notice hearing was very brief, lasting about five minutes, during which the judge made a section 37 direction and an interim care order to protect the Child pending a full hearing. The subsequent on notice hearing was substantial, allowing the Guardians to make extensive submissions despite their hostile and disruptive conduct.

The court rejected the appellants’ submission that the judge had pre-ordained the outcome or shifted the burden of proof improperly. It found that the interim care order made at the without notice hearing was a holding order pending the on notice hearing, where the final decision to continue the order for eight weeks was made.

The court noted the judge’s exceptional tolerance of the Guardians’ repeated interruptions and hostile behaviour during the on notice hearing and acknowledged the difficult circumstances under which the judgment was delivered.

Finally, the court observed that the judge’s decision to make an eight-week interim care order was within her discretion and that the length of the order did not constitute an error.

Holding and Implications

DISMISSED

The court dismissed the appeal, upholding the judge’s decision to make the interim care order for the Child’s immediate removal from the Guardians’ home. The court found no error in the judge’s assessment of the welfare thresholds or in the procedural steps taken, including the use of section 37 and the conduct of the without notice hearing followed by a substantial on notice hearing. The decision ensures the Child’s immediate protection from emotional harm while the ongoing care proceedings continue.

No new precedent was established by this decision; rather, it affirmed existing principles regarding the threshold for interim care orders, the court’s discretion in urgent child protection cases, and procedural fairness in the context of highly contested family proceedings.