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03 Aug
Julie Moseley has recently been involved in the case of RE: L-A (Children) [2009] EWCA CIV 822
The test for interim removal of children within care proceedings was defined in Re H [2001] 1 FCR 350 by Thorpe LJ in the Court of Appeal as follows: the separation of parent and child should only be ordered if the child’s safety demands immediate separation.
This was followed in the subsequent cases of Re M [2006] 1 FLR 1043 and Re K and H [2007] 1 FLR 2043.
In Re L [2008] 1 FLR 575 Ryder J sitting in the High Court coined a phrase which he said summarised the test of Thorpe LJ : an imminent risk of really serious harm. This phrase became the test used frequently in interim removal cases.
In this case the judge found neglect of the children passed the threshold test (indeed that was conceded)and expressed his lack of enthusiasm for leaving the children with their mother but said that he felt bound by the test of Ryder J which, he felt, put down a marker. He left the children in the care of mother.
The Local Authority appealed supported by the Children's Guardian.
The appeal was allowed and Thorpe LJ held that it was never Ryder J's intention to 'raise the bar' in respect of the test for interim removal and that the judge, in finding that the phrase of Ryder J raised the test he should apply, was therefore wrong in law. On the concession of the Local Authority a rehearing was ordered.
For information please click on the link below
