If a Local Authority issues an application to the Family Court to commence Care Proceedings in respect of a child, it may be asking the Court to make an ‘Interim Care Order’ (ICO).

An ICO is a short-term order that gives the Local Authority ‘Parental Responsibility’ for a child, alongside their parents. If a child is made subject to an ICO, this means that the Local Authority obtains decision-making powers about that child and can, if necessary, override those of the child’s parents to ensure the child’s safety and wellbeing.  

An ICO stays in place until a further order is made in respect of that child, or until the Court discharges that order.

Usually, ICOs are made at the start of Care Proceedings. There will be a first hearing, where the Local Authority will tell the Court why it thinks the legal test has been met for an ICO to be made. The Court will also hear from the solicitors for the parents, and for the child(ren), as to whether it is agreed or contested that an ICO is necessary and should be made. The Judge will then decide whether to grant the Local Authority an ICO.

If an ICO is made, the Local Authority becomes legally responsible for a child. The Local Authority is also under a duty to promote reasonable contact between the child in its care and their parents.

The Legal Test

As aforementioned, for an ICO to be made, a legal test must be met.  For a Court to grant an ICO, the Court must be satisfied that there are reasonable grounds for believing that…

• That the child concerned is suffering, or is likely to suffer, significant harm;

and…

• That the harm, or likelihood of harm, is attributable to; 
  • the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
  • the child’s being beyond parental control.

This is referred to as the ‘threshold criteria’ and it is detailed within Section 31 of the Children Act 1989.

In order to make an ICO, the Court does not have to be satisfied the threshold criteria is definitely met. Rather, for an ICO to be made, there is the lower bar of the Court being satisfied that there are reasonable grounds for believing that a child is suffering, or is likely to suffer, significant harm (attributable to the care given to the child, or likely to be given to them if the order is not made, or the child’s being beyond parental control). This is set out in Section 38 of the Children Act 1989.

Interim Order vs Final Order 

An interim order is a type of temporary Court order. It is usually made at the start of Court Proceedings. This is to ensure a child’s safety and wellbeing whilst assessments are ongoing and evidence is obtained by all parties during the Court Proceedings.

Care Proceedings usually last for around 26 weeks.  At the end of proceedings, the Court will decide whether or not to make a final care order, some other order, or no order at all.

Just because an ICO is made whilst proceedings are ongoing, it does not mean that a child will be made subject to a Final Care Order at the end of proceedings. An ICO is intended to secure a child’s safety and wellbeing during the lifetime of litigation, when it is not yet appropriate for a Court to make final orders.

Where will my child live under an ICO?

If an ICO is made in respect of a child, it does not always mean that a child is removed from their home. Sometimes (albeit rarely) an ICO will be made, and the child will remain at home. It is very dependent upon individual circumstances, the concerns that the Local Authority has and whether the Local Authority has the resources to put in place protective measures to keep a child safe at home, despite their concerns. 

It is more often the case that if the Local Authority is seeking an ICO in respect of a child, they are also seeking to temporarily remove a child from their parents’ care to a place of safety.

Another legal test has to be satisfied for the Local Authority to remove a child from their home and to place them elsewhere, such as with a friend or family member, or in foster care.  It is a serious inference with family life for a Court to remove a child from their home.

The test that must be satisfied for the Court to sanction (permit) removal of a child, is contained within case of C (A child) (Interim Separation) [2019] EWCA Civ 1998.

1. An interim care order is made at a point when the evidence is incomplete. It should therefore only be made to regulate matters that cannot wait for the final hearing. An ICO is not intended to place any party in the proceedings at a disadvantage.
2. Removal of a child from a parent is an interference with their right to private family life. Removal at interim stage is a particularly sharp interference, even more so if the child is a baby because it will affect the formation and development of the parent-child bond.
3. An order for separation under an ICO will only be justified where it is both necessary and proportionate.
4. A plan for immediate separation will therefore only be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of separation are a proportionate response to the risks that would arise if it did not occur.
5. The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.

What can I do?

If you have been told that the Local Authority are going to issue Court Proceedings about your child, you should seek legal advice as soon as possible. If you are a parent with parental responsibility for your child, you will be entitled to legal aid and free representation from a solicitor. The solicitor will be able to provide advice on your situation, and if necessary, contest (argue against) the making of an ICO and the removal of your child from your care in Court.

Support

Our specialist Child Care Team offers legal advice to parents and family members involved in care proceedings with the Local Authority. Should you require any assistance, please contact our Child Care Team on 01935 424581.