H-B-S (Children: Discharge of Interim Care Order) – Family Law Week case summary

August 10, 2020

The case concerned an appeal by a local authority against the discharging of care orders in respect of two girls, aged 9 and 7. The orders were made in January 2020 in the context of physical abuse allegations against a child of their mother’s then-partner, where either the mother and the now ex-partner were accused of causing the injuries.

The fact-finding hearing was initially postponed in April as a result of the pandemic. It was then re-listed for the start of July. A key piece of evidence – the transcripts of the children’s and parent’s interviews with the police about the alleged incident – remained outstanding. The court was initially informed that these would be available part-way through the hearing, and proceeded to hear some of the evidence, but due to an error on the part of the local authority they would not be available during the hearing.

The mother made an application to discharge the care orders in respect of her two children, opposed by the local authority and the guardian. At the time of the application, it was uncertain when the hearing would be able to be completed, with dates canvassed from August to November.

The judge allowed the application and discharged the orders. He noted that the evidence had not changed significantly since the hearing, and that the test was whether the test under s.38 of the Children Act 1989 was still met and whether continued separation was necessary and proportionate. The guardian argued that the test had been met before and the passage of time had not diminished the risk. The judge remarked that he wondered if the decision to separate in January would still have been made given the delays in compelting the case, and noted the evidence already given by a teacher that there had been no previous concerns about mother’s care. He also weighed in the balance the potential harm in continued separation, and discharged the orders.

Read the full summary on Family Law Week.