Mother successfully appeals removal of children under ICOs in Re N (Children) [2020] EWCA Civ 1070

A Mother, supported in her position by the Father and the Children’s Guardian, has successfully appealed an order that the children are removed from her care under pre-existing ICOs.

The context of the proceedings were that the LA initially applied for removal of the children to foster care under ICOs, but changed their interim position at the first hearing, agreeing that the children would return to their Mother under a working agreement. The LA then made 2 further applications to remove the children which were later withdrawn.

In the 3rd such application, the LA applied again for removal of the children to foster care, alleging that the parents had broken the working agreement (intending to prevent the children having unsupervised contact with their father), and the Exclusion Order which excluded him from the family home. The parents denied the allegations (of which there were, importantly, only 3) and opposed the application for removal.

The Hearing

The application was therefore set down for a one-day contested hearing to be heard remotely, with the added complication that the Mother required an interpreter, who was only available to interpret via the judge’s laptop. At paragraph 9 of the Court of Appeal’s judgment, it was noted that:

“The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take "at face value." She also made clear that she would need to have "robust" evidence from the social worker. She also noted that the Guardian, who was unable to attend the adjourned hearing, did not support the removal of the children on the basis of the evidence filed. We were told that the impression left on the parties was that the local authority's evidence was going to be scrutinised to see whether it was capable of sustaining its revised care plan.”

The parents filed statements as directed and the SW gave evidence as planned, which was for a total of 3.5 hours during the hearing, not limited to the three latest allegations which had been relied upon, but including allegations going back to December 2019 which the parents had not had the opportunity to respond to. As a result, the parents made repeated requests to be allowed to give oral evidence in response, which were not acceded to. Additionally, throughout the SW’s evidence the Mother was unable to give instructions to her Counsel as a result of her requiring an interpreter (assisting through the Judge’s own laptop).

Needless to say, the Judge sanctioned removal, taking into account the entire social work chronology and the “pattern of evidence” in the case suggesting that the parents had breached working agreements and court orders. The Mother immediately applied for permission to appeal and a stay, both of which were refused.

The Appeal

In allowing the appeal, Jackson LJ stated at paragraph 31 that:

“A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.”

Jackson LJ went on to hold that “fairness required that in this situation she should hear from both the accuser and the accused” (§31).

It was also added that “the test for interim removal could not reasonably have been met on the evidence that the judge received” (§32).

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