Court of Appeal overturns interim removal of six-year-old boy from parents

The order under appeal was made by a recorder sitting in the Central Family Court on at the end of May 2026.

In B (A Child) (Interim Separation) [2026] EWCA Civ 748 (17 June 2026), Lord Justice Baker, with whom Lord Justice Popplewell and Lady Justice Elisabeth Laing agreed, held that the recorder had “failed to apply the principles established by case law” and had not adequately explained why the positive features identified by the professionals were “insufficient to protect [the child’s] safety and welfare in the interim”.

The appeal was brought by the child's guardian and supported by both parents. The local authority opposed it.

The proceedings concerned a child, B, whose family had been known to the local authority.

Over the following years, the local authority received reports from B's nursery, school and neighbours about concerns regarding the mother's mental health, the father's excessive drinking, allegations of domestic abuse, neglect, unsafe and unhygienic home conditions, and inconsistent care.

In February 2026, the local authority started care proceedings seeking B's removal under an interim care order.

At a hearing before HHJ Marin that month, the court concluded that the threshold criteria for an interim order under section 38 of the Children Act 1989 were satisfied. But the local authority had not identified a foster placement where B could be accommodated.

The judge therefore made an interim supervision order on the basis that there would be a written agreement with the parents with a provision that the mother would work with a family support worker.

By April, the local authority had identified a suitable foster placement and therefore sought to renew its application for an interim care order.

At the hearing conducted by the recorder, the local authority asked the court to make an interim care order (ICO) on the basis of a plan that B be removed into foster care.

The mother proposed that he should remain in her care "as she has been the only full-time carer B has known".

The father's position was that B should live with him under a child arrangements order under section 8 of the Children Act which would provide him with parental responsibility. It was argued that this "would enable and empower him in [a] legal sense to make decisions for B rather than deferring to the mother".

The guardian supported the father's proposal but recommended that that the child be placed with his father under a child arrangements order and a supervision order, with the practical arrangements including the division of parenting time to be resolved by agreement or by the court.

The recorder granted the local authority’s application and approved a plan for B's removal into foster care.

He said: “I accept the guardian's analysis that at present B is suffering harm and will do so in the future if he stays with his mother as she is simply not able at present to offer good enough care at present.

“I look to the future and my concern is that the father's plan also leaves B at risk of suffering harm as a result of the fourfold problems identified by the local authority and summarised above."

The guardian put forward seven grounds of appeal.

1. The judge failed to apply the correct test in sanctioning the immediate removal of the child from his parents.
2. He characterised placement with the father as recommended by the guardian as 'untested' despite the fact that the shared care arrangement had been in place for many weeks, was embodied in a written agreement between the parents and the local authority and that the child had been in the father's sole care for a period of 10 days in the period leading to this hearing, without any concerns being raised about his care.
3. He failed to consider sufficiently or at all the positives identified by the local authority with the father.
4. He attached undue weight to the results of hair strand testing without considering it as one piece of evidence within the broad canvas of evidence.
5. He failed to address whether any steps could be taken or support provided to mitigate any of the harm identified.
6. He failed to consider adequately or at all the harm that will be occasioned to the child of being removed as against the potential harm of remaining in his parents' care.
7. He failed to explain why he rejected the recommendation of the guardian save to say that he characterised her proposals as 'optimistic'. The guardian had recommended that the child be placed with his father with a clear schedule setting out how and where he should spend his time between his parents.

Analysing the appeal, Baker LJ considered evidence that the father had demonstrated "consistent engagement" with professionals, had taken on board guidance regarding physical chastisement, regularly attended parenting assessment sessions, maintained a clean and orderly home, and provided B with a structured evening routine.

He said: “The recorder himself described his decision at the start of the judgment as 'finely balanced'. The social worker had set out in detail a number of positive features about the father's care of the child. The fact that the local authority had ultimately concluded that these factors were outweighed by the disadvantages and concerns about the father's care did not obviate the requirement for the recorder himself to conduct that analysis.”

He added: “The guardian had reached the opposite conclusion. I agree with the submission that simply dismissing her view as 'overly optimistic' was insufficient. He needed to explain why the positive features identified by the professionals were insufficient to protect B's safety and welfare in the interim and why the balance came down in favour of immediate removal into foster care.”

Concluding the case, Baker LJ said: “It is of course the firm rule that this Court will not interfere with a judge's findings and evaluation of facts and inferences to be drawn from them unless compelled to do so. In this case, however, the circumstances compel such a course. Any proposal to remove a child from their parents under an interim order before full consideration of the evidence can only be justified where it is both necessary and proportionate. It is a serious step which requires a careful and rigorous analysis.

“I recognise that judges have to take these decisions under very considerable pressures in the family court. But that is why we have an appellate process. In this case, despite the evidently conscientious way in which the recorder conducted the hearing, I concluded that in deciding that B should be removed from his parents he failed to apply the principles established by case law.”

The local authority’s application was remitted to the family court.

Lord Justice Popplewell and Lady Justice Elisabeth Laing agreed.

Lottie Winson