The Court of Appeal has found that when refusing a local authority’s application for separation of an eight month old baby girl from her parents, the circuit judge had not undertaken the necessary “anxious scrutiny”.
The decision in C (A child) (Interim Separation: Residential Care) [2025] EWCA Civ 1618 underscores the importance of balanced and anxious scrutiny where interim separation is sought.
C, a girl, was born in early April 2025. She has been the subject of an interim care order in favour of the local authority under section 38 of the Children Act 1989 (‘CA 1989’) since the day after her birth. C spent three weeks with a foster carer before moving to the residential unit, where she remained with her parents at the time of the Court of Appeal hearing.
The parents are both aged 30. C is the youngest of their nine children, all of whom “have been removed from their care following findings of neglect, emotional harm, and physical abuse,” the judgment noted.
Both parents have learning difficulties, the father has a conviction for hitting an older child in 2021, and neither parent has any meaningful family support. All other children have been placed permanently with substitute families.
In the appeal judgment, Lord Justice Cobb noted:
“It is the Local Authority’s evidence that despite targeted interventions and sustained professional input, neither parent has demonstrated meaningful or sustained improvement in their parenting ability.”
In August 2025, the local authority sought to bring the placement to an end and applied to the court for authorisation. The application was refused in September by a circuit judge.
The local authority appealed on three grounds: that the judge failed to fully consider the evidence it filed in support of the application to separate the child from her parents and relied instead on a parenting report from the residential unit; the judge did not undertake a careful and considered welfare analysis; the judge wrongly focused on the risk of physical harm without considering the potential emotional and psychological harm.
At the September hearing, the children’s guardian was in support of the local authority’s application, and the mother opposed. The father was recorded to be neutral on the matter.
In accordance with section 1 CA 1989, Lord Justice Cobb said C’s welfare was the court’s paramount consideration, and the section 1(3) welfare checklist criteria applied.
In particular, the court considered Re C (A Child) (Interim Separation) [2019] EWCA Civ 1998; [2020] 1 FLR 853 (‘Re C 2019’) which sets out five key propositions when making interim care orders: the order should only be made to regulate matters that cannot wait until the final hearing; the removal of a child is an interference with their right to respect for family life under Article 8, and removal at an interim stage is “a particularly sharp interference”; an order for an interim separation will only be justified when it is both necessary and proportionate; immediate separation should only be sanctioned by a court when the child’s physical safety or psychological or emotional welfare demands it; and a high standard of justification must be shown by a local authority seeking a separation order, having explored all other available resources.
The hearing, listed for one hour, proceeded on oral submissions and according to the transcript, took only a “fraction” of that time. The Court of Appeal noted counsel for the local authority’s submissions that the judge in the family court hearing had not considered all the relevant documents and “did not undertake any ‘evaluation or balancing up of factors’ (Re C [2020] EWCA Civ 257 (‘Re C 2020’))” relevant to C’s welfare, having stuck rigidly to the five points listed in Re C 2019.
In his conclusion, Lord Justice Cobb noted:
“C is indisputably a vulnerable infant. At the time of the hearing on 16 September 2025 she was merely five months old; she was then as now in the primary care (albeit closely supervised and monitored at Oak Lodge) of parents with significant learning difficulties who both carry a sad history of neglectful and inadequate parenting of their older children. It is not in issue that Oak Lodge had for some considerable time prior to 12 August 2025 expressed material concerns about C’s welfare, and the parents’ ability to meet her needs.
“The question for the Judge was whether those concerns, taken together and attaching paramount consideration to her welfare, met the ‘high standard of justification required’ to render ‘necessary and proportionate’ the separation of C from her parents, with the obvious interference with their Article 8 rights.
“I regret that I do not find in the judgment (or in the transcript of the hearing which preceded it) the sort of “anxious consideration” of the issues in this case which Peter Jackson LJ had contemplated and spoken of in Re C 2020 at [13]. Nor do I find a “coherent” assessment of the evidence which had been filed…”
Although noting that judges in the Family Court work under significant pressure, and stating he was not critical of the judge in the case, Lord Justice Cobb concluded he had “proceeded too quickly and cursorily to a firm decision,” without consideration of the wider issues and the parents’ “chronic history of poor parenting”.
Lords Justice Arnold and Zacaroli agreed and the appeal was allowed. The matter will be re-heard in the Family Court before a different judge.
C (A child) (Interim Separation: Residential Care) [2025] EWCA Civ 1618
