Caution when proceeding “too quickly and cursorily to a firm decision”

The Court of Appeal has clarified that the five-point test in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 is not the sole point of reference when determining an interim separation application. A careful and considered welfare analysis (per the welfare checklist - section 1(3) Children Act 1989) is also required (Re C [2020] EWCA Civ 257 applied).

Background 

The case of Re C (A child) (Interim Separation: Residential Care) [2025] EWCA Civ 1618 relates to C, an infant girl. Her parents have learning difficulties and suffer with mental ill-health. C’s father has been observed to display sexually inappropriate behaviour; is known to abuse alcohol and cannabis; is said to have perpetrated domestic abuse and has a conviction for hitting one of his older children in 2021. The parents have nine children, all of whom have been removed from their care following findings of neglect, emotional harm, and physical abuse. 

Proceedings 

Due to serious concerns about both parents’ ability to care for C, she was subject of an Interim Care Order under section 38 CA 1989 at two days old. C spent her first three weeks in a mother and baby foster placement, before moving to a residential unit (‘Oak Lodge’) with both parents for the purpose of assessment under section 38(6) CA 1989. 

On 12 August 2025 Oak Lodge prepared a Final Parenting Capacity Assessment Report (“the report”) as directed by the court, thereby bringing the assessment to an end. Although the report provided mixed reviews of the parents’ care of C, it highlighted multiple areas where the parents had not shown enough insight or ability to change. Of particular concern was their inability to meet C’s health needs, establish a routine and manage her diet. The report did not recommend the parents have long-term care of C. 

In view of the report, the Local Authority applied for the court’s authorisation to separate C from her parents and bring the assessment at Oak Lodge to an end. The application was supported by the Child’s Guardian but opposed by the mother. The father was neutral on the matter. 

The application was heard on 16 September 2025. At which point the advocates were under the impression the Oak Lodge placement would end imminently (irrespective of the outcome of the application). During the hearing it became apparent that Oak Lodge were able to continue the placement, despite the final assessment report having been completed. Relying heavily upon Oak Lodge not requiring the parents to leave, the judge concluded that the Re C 2019 test could not be met and refused the application. 

The Local Authority appealed the decision on three grounds: i) the judge failed to fully consider all of the evidence filed by the Local Authority, ii) failed to undertake a careful and considered welfare analysis and iii) wrongly focused only on the risk of physical harm to C and did not consider potential emotional and psychological harm.

Appeal 

The Court of Appeal emphasised the need for a coherent assessment of the evidence when considering the relevant factors contained within the welfare checklist (per section 1(3) CA 1989; Re C [2020] EWCA Civ 257). The ‘justification’ and ‘proportionality’ requirements set in Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998 are appropriately high, but do not negate the need to undertake a balancing exercise focusing on the welfare of the child [24]. 

There had been a failure below to read the Local Authority’s application, refer to the social worker’s statement and the paramountcy test (section 1 CA 1989), and apply the welfare checklist. This meant it was simply unclear what matters had been taken into account when considering the balance of harm. This was compounded by an ‘unshakeable view’ that if the parents were remaining at Oak Lodge then the test in Re C 2019 would not be satisfied. This fell short of the ‘anxious consideration’ of the issues envisaged in Re C 2020 [38].

Noting that the hearing had taken only a fraction of the 1-hour listing, Cobb LJ acknowledged the significant pressure judges work under and the benefit of robust case management. Nevertheless, the court should not proceed too quickly and cursorily to a firm decision that an application must fail. Particularly without consideration of the wider issues (in this case: the relevant background, the risks associated with the father, the harm the child was suffering despite being in placement and the child’s emotional needs) and clear submissions from the Child’s Guardian about ongoing harm and poor parenting. 

Allowing the appeal, the application was remitted back to a different judge for determination. 

The Child's Guardian was represented by Zoe McGrath of 42BR (instructed by Kingsfords). 

Ellie Andrews is a pupil at 42BR.