James Dove responded successfully to an appeal of an interim care order in BJ (a child) [2017] CA (Civ Div) before Lord Justices McFarlane, Moylan and Peter Jackson on behalf of a local authority.


14th December 2017

The court upheld the decision of HHJ Corbett to separate a mother from her baby at a residential assessment centre. The court confirmed that the test for removal is as set out by Lord Justice Thorpe in Re H [2002] EWCA Civ 1932:

Paragraph 39. "…..In my judgment, the arts 6 and 8 rights of the parents required the judge to abstain from premature determination of their case for the future beyond the final fixture, unless the welfare of the child demanded it. In effect, since removal from these lifelong parents to foster parents would be deeply traumatic for the child, and of course open to further upset should the parents' case ultimately succeed, that separation was only to be contemplated if B's safety demanded immediate separation." 

McFarlane LJ confirmed that 'immediate' was an important part of the test. The question remains, what is the situation at the time of the hearing? Does a child need to be immediately separated from their carer or not?




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