Removal of Children at Interim Hearings: Is the Test Now Set Too High?

02 APR 2009

Darren Howe Barrister, One Garden Court Family Law Chambers

It was reported in the media that, just 7 days before Baby P's death in August 2007, the local authority had been advised that the threshold test for his removal from the care of his parents had not been met. Given all that is now known about the facts of the Baby P case, it is not surprising that there has been heavy criticism in the press not just of the advice that was given but also of the law itself. Has the test for removal of a child from home become that unclear so as to be easily misunderstood with such tragic consequences?

The test to be met by a local authority for the removal of a child from its parents under an interim care order has been developed by case-law and, arguably, has been raised over time by judicial interpretation. Some might say that the test has now reached a height that was not contemplated when the Children Act 1989 (CA 1989) came into being.

Ryder J gave judgement in the case of Re L (Care Proceedings: Removal of Child) [2008] 1 FLR 575 in September 2007. This case is now the standard authority cited by advocates for parents in seeking to oppose an application for an interim care order (ICO). There has been concern expressed by those representing local authorities and children's guardians that the interpretation of the test for removal provided by Ryder J has made it extremely difficult, particularly in long term neglect cases, to obtain the interim removal of children from the home. The local authority now has to establish that 'there is an imminent risk of really serious harm' before the court can be satisfied that there is the need for the removal of a child from the care of its parents prior to the final hearing.

To read the rest of this article, see April [2009] Family Law journal.

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