Trinity Family Barrister Summary of J & Others, Re (Children: Interim Removal) [2023]

Trinity Chambers' Family and Childcare barrister, Kate Fenwick provides an overview of the recently published Court of Appeal decision in:
J & Others, Re (Children: Interim Removal) [2023] EWCA Civ 1266.

The case provides family law practitioners with a further reminder of the correct test to be applied when the Court is determining whether a child/children should be removed from parental care at an interim stage in the proceedings.

In applying the principles set forth in C (A Child) (Interim Separation) [2019] EWCA Civ 1998, the Court of Appeal in J emphasised the importance of the following:

1. In undertaking the assessment of risk, the importance of considering whether the risk of harm if the children were to be removed is outweighed by the risk of harm should they remain in parental care.
   
   
2. Proper consideration of less interventionist options (ie. Children remaining at home under Interim Care Orders – if agreed by the Local Authority – or Interim Supervision Orders), buttressed by a clear order defining other relevant considerations such as contact and a signed written agreement.

The Court again stressed that “immediate risk of serious harm” is not the test.

The Court of Appeal also reaffirmed the guidance around emergency appeals of interim removal decisions – the decision of the lower Court in J to refuse a short stay being “contrary to authority and wrong in principle”.