N (Children: Interim Order/ Stay), Re

Factual and Procedural Background

On 6 May 2020, the Family Court approved the removal of three children from their mother and placed them in local authority foster care under pre-existing interim care orders. The removal was opposed by the parents and not supported by the Children's Guardian. At the conclusion of the hearing, conducted by video conference, counsel for the mother requested a short stay to allow an urgent application to this court, which was refused. The children were removed that evening.

The family originates from Afghanistan. The mother does not speak English, and the father works as a taxi driver. The children comprise two boys aged 12 and 5, and a 7-year-old girl with global learning difficulties. The local authority became involved in November 2019 following concerns of physical discipline and domestic violence. The children were initially taken into police protection and placed in foster care for a week before being returned to their mother subject to a working agreement and an exclusion order against the father.

Subsequent applications by the local authority for removal of the children were made and withdrawn on two occasions due to insufficient evidence. In February 2020, the local authority sought surrender of family passports over concerns of potential removal from the jurisdiction. At a hearing on 28 February 2020, the removal application was again withdrawn with judicial endorsement, emphasizing compliance with orders.

On 27 April 2020, the local authority renewed its application for removal, citing new concerns including breaches of the exclusion order and safety plan. The hearing was adjourned to 6 May 2020 with directions that only the social worker would give evidence, and the parents were to file sworn statements which the judge said she would accept at face value. The Children's Guardian did not support removal based on the evidence filed.

At the 6 May hearing, the social worker gave extensive evidence covering alleged breaches dating back to December 2019. The parents were denied the opportunity to give oral evidence despite requests. The judge refused permission to appeal or a stay of removal at the conclusion of the hearing, and the children were removed that evening. The main proceedings were scheduled for a fact-finding hearing on 23 September 2020.

Legal Issues Presented

1. Whether the judge’s decision to hear evidence only from the social worker and not from the parents rendered the hearing unfair.
2. Whether findings of fact were made without disputed matters being tested, particularly given language barriers and reliance on a child with global developmental delay.
3. Whether the judge should have heard evidence from the Children's Guardian regarding risk and proportionality of removal.
4. Whether the judge applied the correct standard of proof at the interim welfare stage.
5. Whether the refusal to grant a short term stay before removal was justified.

Arguments of the Parties

Appellant's Arguments

• The hearing was unfair because the judge heard only from the social worker and did not hear oral evidence from the parents, despite stating she would accept their sworn statements at face value.
• Findings of fact were made without testing disputed matters, which was inappropriate especially given the language barrier and reliance on a child with developmental delay.
• The judge should have heard evidence from the Guardian, who did not support removal, to properly assess risk and proportionality.
• The judge applied an incorrect standard of proof, using a "reasonable grounds to believe" test inappropriate for welfare fact-finding.
• The refusal to grant a short term stay to allow an urgent appeal application was unjustified and prejudiced the appellant.

Respondent's Arguments

• The judge had wide discretion on which oral evidence to hear, and the hearing was fair.
• The judge was not required to make findings of fact at the interim stage but to assess risk, for which the parents’ evidence was unnecessary.
• The judge properly considered necessity and proportionality and concluded that interim removal was justified due to changed risk factors.
• The local authority contended that further relevant information had emerged in foster care, justifying a rehearing if the appeal succeeded.

Guardian's Position

• The Guardian was neutral on the appeal.
• At the hearing, the Guardian did not consider the evidence sufficient to justify removal and was surprised by the order made.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the necessity for interim orders in child welfare cases to be made on incomplete information and often urgently. The judge was correct in directing herself on the test for removal at the interim stage and in recognizing the serious nature of removing children from their mother. However, the court found that the judge’s decision to hear only the social worker’s oral evidence, while relying on the parents’ written statements but giving them little weight, was unfair and ineffective as an investigation. The parents provided explanations for the evidence against them that were not implausible and deserved proper consideration.

The court also found that the judge’s welfare evaluation was inadequate, being overly general and insufficiently balancing the children’s welfare factors beyond risk alone. The characterization of the risks as "grave" was not supported by the evidence heard, which was relatively weak for such a disruptive order. The judge’s reliance on a "reasonable grounds to believe" standard was inappropriate for welfare fact-finding at the interim stage.

Regarding the refusal to grant a short term stay before removal, the court held that this refusal was unjustified. The risks to the children during a short delay were minimal, especially given the prior sanction for them to remain at home during the procedural period. The mother’s disadvantage in instructing her lawyers due to language and procedural constraints further supported the need for a short stay.

Consequently, the court allowed the appeal, ordered the immediate return of the children to their mother under the existing interim care orders, and maintained the exclusion order against the father. The court emphasized that this interim appeal decision does not bind the final outcome or future interim applications.

Holding and Implications

The court ALLOWED THE APPEAL, ordering the immediate return of the children to their mother’s care under the existing interim care orders and maintaining the exclusion order against the father.

This decision reversed the removal of the children from their mother on 6 May 2020 and highlighted the necessity of procedural fairness in interim hearings, including hearing evidence from both parties when disputed facts are central. The refusal to grant a short term stay was also found to be unjustified. The court did not set new precedent but clarified the application of established principles regarding interim child welfare decisions, evidential fairness, and stays pending appeal. The ruling leaves open the final fact-finding hearing and any future interim applications.