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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> KB (A Child) v Borough Council & Ors [2009] EWCA Civ 1254 (25 November 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1254.html Cite as: [2010] 1 FCR 114, [2010] Fam Law 130, [2010] 1 FLR 1211, [2009] EWCA Civ 1254

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Donald Hamilton sitting in the
Reading County Court on 4 September 2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2009

Lord Justice Wall :

Introduction (1) the applications

1. These are applications by both the guardian of a young child KB and by the local authority which has taken care proceedings in relation to her and her half brother TA, for permission to appeal against the dismissal by His Honour Judge Donald Hamilton sitting in the Reading County Court on 4 September 2009 of the local authority's application for an interim care order under section 38 of the Children Act 1989 (the Act) in relation to KB. The judge made an interim supervision order in relation to KB and an interim care order in relation to TA. The latter was not disputed in the court below and is not the matter of challenge in this court.
2. The judge refused an application made on behalf of KB for permission to appeal, but made an interim care order under section 40(1) of the Act until 14 September 2009 to enable the guardian and / or the local authority to apply for permission to appeal to this court.
3. On 11 September 2009, Wilson LJ granted a stay of the judge's order, and directed that the order made by the judge under section 40(1) of the Act be varied to the effect that it would expire only on final refusal of permission to appeal or, if granted, on determination of the appeal.
4. On 12 October 2009, having read a transcript of the judge's judgment, Wilson LJ adjourned the two permission applications for consideration at an oral hearing on notice on 28 October 2009, with the appeals to follow if permission was granted. We heard argument on that date and reserved judgment.

Introduction (2): General Comments

5. Before I deal with the substances of the applications, I would like to make a number of points about the circuit bench and family proceedings in the county court, from which, of course, these applications originates. I begin in this way because I have reached the clear conclusion that we should; (1) grant permission to appeal; (2) allow the two consequential appeals; and (3) direct that KB should be made the subject of an interim care order in favour of the local authority. As the case is ongoing, I also think we should impose reporting restrictions, and this judgment will be written anonymously.
6. I would not want it to be thought that those of us who sit in this court are unaware of the enormous pressures on circuit judges at the present time. It is not for nothing that the circuit bench has been described as the engine room of the family justice system. Due to the shortage of High Court Judges of the Family Division, the Circuit Bench deals with the overwhelming majority of difficult care and private law cases. Any care proceedings which are complex or lengthy are immediately transferred up from the Family Proceedings Court to the County Court. Once in the County Court the application has to be case managed, kept within appropriate bounds and time-tabled to a final hearing. Large amounts of paper are commonplace, and reading time in short supply. Added to which, of course, the cases not only frequently involve difficult and finely balanced decisions, but are of the greatest moment to both the children and the adults involved.
7. Added to this, family law is not the only area in which many circuit judges sit and adjudicate. Many sit additionally in both the criminal and in the civil jurisdictions. Working with inadequate resources, and having to balance the work-load – in particularly finding time for the unexpected and the urgent (both commonplaces of family law) - all of these factors make an already difficult task almost impossible.
8. I therefore approach the case with an innate sympathy for the judge, who had to deal with an extremely difficult application on a Friday with inadequate reading time and no time to prepare a judgment. I bear very much in mind that he gave an extempore judgment and that, by contrast, I have given myself the luxury of reserving judgment, and ample time to read the voluminous papers.

Introduction (3): Interim care and supervision orders

9. The first point of importance thrown up by the case, in my judgment, is the deceptively simple question: what is an interim care order? What is it for? And in what circumstances should it be made?
10. The judge, who has, of course, enormous experience and who served with the greatest distinction for many years as the Designated Family Judge for the Birmingham Care Centre (one of the biggest in the country) does not appear to have asked himself these questions. Perhaps he did not think it necessary to do so. But if he had asked them, the answers might have helped his decision making process.
11. I also think, with all due respect, that the judge was unwise to be dismissive of the guidance provided by this court. At one point in his extempore judgment, he says:-

Passing reference has been made to various authorities on section 38 of the Children Act, and I may mention some of them, but my starting point must be the Act itself and not glosses which have been put onto it on the facts of particular cases. Human beings are infinitely variable, infinitely different, and my experience of care cases is that case law is a dangerous guide.

12. If what the judge was saying was that authorities are of limited use in cases such as the present because they can usually be distinguished on their facts, I would not disagree with him. However, when considering the "various glosses" which have been put on section 38 of the Act, he cites the recent decision of this court in Re L-A (children) [2009] EWCA Civ 822 (Re L-A), and comments that in that case this court "has expressed its disapproval of the gloss which was encapsulated in the snappy phrase 'imminent risk of really serious harm'".
13. Many of us have striven hard for appeals from the Circuit Bench in Family matters to continue to come to this court rather than go to the next tier (the High Court Bench). There are many reasons for this approach, but one of them – and one of the most important – is to enable this court to provide authoritative guidance to the Circuit Bench to assist it in resolving the difficult issues with which it is regularly faced. It does this important argument no service, in my judgment, if it is treated dismissively by those whom it is intended to help.
14. Although the judge's subsequent directions to himself on the law are immaculate, I cannot rid myself of the feeling that by disregarding authority, as he does, the judge has indeed fallen into the trap identified by Mr. Bedingfield for the guardian and Mr. Setright QC for the local authority of minimising the seriousness of the factual sub-stratum with which he was dealing.
15. None of this would, of course, matter if the judge had properly conducted the so-called "balancing exercise" and not dismissed the concerns of the guardian and the local authority without what they submit was an adequate analysis. As this judgment will, however, I hope demonstrate, the judge has conducted a flawed balancing exercise and has not adequately explained why he has taken the course he did. Indeed, that very course (an interim supervision order) is barely reasoned, and the judge does not, in my judgment, explain either how (1) it was to operate or (2) it would protect the child.
16. Since the judge heard no oral evidence, we are in as good a position as he to exercise a judicial discretion, and we are enabled to do so afresh. This I would do in the manner indicated in paragraph 5 of this judgment. I shall in due course return to the questions: what is an interim care order? What is it for? And in what circumstances should it be made? It is necessary, however, first of all to outline the essential facts.
17. Before doing so, I need to say what I hope is obvious, namely that nothing in this judgment is in any way designed to indicate what the final outcome of the case will be. That, of course, will be a matter for the judge to decide (and I can see no reason why it should not be the same judge) on all the available evidence at the final hearing. This is a point which I will repeat at the conclusion of this judgment.

The facts

18. The judge was dealing with two children. They are a boy, TA who is 6, and a girl, KB, who is 2. The mother of both children is LB, who is 41. She has five other children, by two different fathers. TA's father is KA, who is aged 43. KB's father, to whom LB is married, and with whom she was living at the date of the hearing before the judge, is RSB. He thus has parental responsibility for KB.
19. LB's three oldest children (the W children) are, respectively, aged 23, 22 and 19. All live independently. Her fourth and fifth children (the S children), born to her by Mr. CS are aged rising 13 and 12, and live with their father. The judge records:-

In respect of these five children, there is a history of child protection concerns reported but not yet fully investigated or established in these proceedings. It is said that none of these children was brought up by their mother beyond the age of six years. The W children (that is to say the three elders) were brought up by their father, as the S children are being brought up now.

20. After describing "a long period of involvement of the local authority in the investigation of concerns against the parenting of TA and KB" the judge records in paragraph 7 of his judgment that:-

Matters came to a sudden and unexpected head on 29^th July. Concerns were expressed then to the local authority about the care which TA was receiving at home and on a visit to the house by the social worker, (Ms HW.) The conditions in which TA was living, or apparently living, seemed to be so alarming that he was immediately removed under police protection and accommodated with a local authority foster carer. On the following day his mother signed her consent to his being accommodated under section 20 of the children Act.

There was no suggestion at that time that there was any need to remove KB from the care of her mother or her father. However, on 29^th July they were both arrested on suspicion of committing offences of child cruelty and / or wilful neglect of a child. The outcome of their arrest was that KB too was removed into foster care under section 20 in the first place and than on 31^st July an application was made for a care order in respect of both children. At the first hearing before the Magistrates on 5^th August interim care orders were made which authorised the local authority to keep both children in foster care and today's hearing was set up for a contested hearing of applications by the local authority for further interim orders.

21. The judge records that the application was unopposed in the case of TA but opposed in the case of KB. The application for an interim order in relation to KB was, however, supported by KB's guardian. The judge then records, correctly, that is was not his function to make "comprehensive findings" and that the question for him was whether or not to make a further interim care order in relation to KB. The judge says that there was "much to be learned" of the experiences of the two children in the care of LB and RSB and identifies the evidence "yet to be gathered" which included assessments of both the children and their parents and the capacity of the latter to provide appropriate care.
22. The judge then goes on to record the circumstances in which the children were living in the home of LB and RSB. He says that the circumstances in which TA in particular was living "can be described in lurid and emotive terms". He adds:-

One inference to be drawn from what the police officers recorded, along with Ms HW (the social worker) is that TA was being kept in a bedroom, poorly furnished. With no toys and possibly in darkness even during the hours of daylight. One understands well, therefore, why the police are carrying out investigations into possible serious offences. These investigations have not yet been concluded and further evidence is required by the police before they are going to be able to interview Mr and Mrs. B again.

On any view, even if the more lurid and emotive (inferences) are not drawn from what the police and (Ms HW) found in the B household, it is clear that TA was being expected to live in condition which were not appropriate for him, and which did not represent good parenting. In particular, these condition drew a marked distinction between TA and his little sister. Whereas he lived in a poorly furnished room with no toys, she had a nicely decorated, nicely furnished bedroom replete with appropriate toys.

23. The judge then goes on to reject the parents' explanation for their differentiation in the treatment of the two children (that they did not have the money to do up both bedrooms simultaneously) – an explanation which, rightly in my judgment, he finds unsatisfactory. The judge refers to the proposition that the child who is preferred may also suffer harm, but asserts that "that is not a finding I can make at the present time".
24. The judge then begins to describe the evidence of TA's half-sister EW (aged 19) in a video taped interview with a police officer given on 29 July 2009, of which we, like the judge, have a transcript. In my judgment, he rightly designates EW's description of his parents treatment of TA as "brutal". However, he is distracted by the mother's conduct in court, and when he resumes he does not give particulars of EW's interview, but simply records the mother's description of EW's account as "false, distorted and unfair". He comments "that again will have to be investigated in due course." He then summarises the local authority's case in these words:

So great is that deficiency (i.e. the lack of insight into KB's needs) in the submission of the local authority that it should be the task of this court to conclude that no child can be safe in the care of Mr and Mrs. B at the present time".

25. It is, I think, worthwhile pausing at this point in order to examine the statements of the police, Ms HW the social worker and what EW alleged in her video interview. It is right to say that the judge found that the threshold criteria for making interim care orders were satisfied in the case of both children. It was, of course, as the judge recorded, for the local authority to satisfy the judge that there were reasonable grounds for believing that the circumstances in respect of each child were as mentioned in section 31(2). Self-evidently, such criteria do not require proof on the balance of probabilities, or any findings of fact by the judge.
26. The statements of the police, Ms HW and EW revealed, in my judgment, a profoundly worrying state of affairs. At several points in his judgment. the judge repeats that it is not his function on the present applications to make findings of fact. With that I agree. However, it was his function to review the evidence and to decide whether or not the statements of the police, Ms HW and EW gave him reasonable cause to believe that the circumstances in respect of each child were as mentioned in section 31(2). They plainly did. So what did this evidence reveal?
27. It is, of course, neither desirable nor possible to reproduce in this judgment all the evidence which was before the judge. What follow are, of necessity, short extracts from much longer documents. It is equally plainly the case that none of what follows has been tested in cross-examination, and much is disputed by LB and RSB. Neither of the factors in the previous sentence, however, is determinative of the task facing the judge. The question for him was not whether or not the allegations contained in the statements of HW, the police and EW were established on the balance of probabilities but (1) whether or not they gave him reasonable cause to believe that the threshold criteria under section 31(2) of the Act were satisfied; and (2) if so, whether or not the welfare of KB required that she should be the subject of an interim care order in favour of the local authority.
28. The statements of HW and of the police officer, SS both described graphically the circumstances in which the children were living. HW, for example, says the following:-

On the 28^th July 2009 a phone call was received by MD (Sessional supervisor) expressing concerns from VW, adult half sibling that TA was being kept in his room as punishment for swearing and hitting KB. She also stated that he had been in the room since he had finished school the previous Wednesday. A telephone call was made to EW who had been staying at the property since the 19^th July 2009 and she confirmed the above.

An unannounced visit to made to the property where RB claimed that TA was out with his sister. A check was made of TA's bedroom where he was found in darkness in his pyjamas. He stated that he had been in there for days and was let out to see his father on Saturday. He said that he had had nose bleeds and thought he was locked in his room. There were blood stained sheets, carpet and tissue in the bin. TA had blood on his nose and looked scared. Telephone calls were made to LB but she was unreachable. Later LB called and was informed of the situation. She refused to return home from work and ended the phone call stating that the Department could f**king take TA but was not to take his clothes from the house. Police Protection was issued on TA and he was taken into care.

Discussions were held by telephone between the social worker and LB on the evening of 28 July. LB was angry and verbally abusive stating that she had taken 10 paracetamol and was going to go and find VW and EW and kick their f**king heads in. LB hung up the phone following this comment. A telephone call was made to the police with concerns for KB's safety as LB's behaviour was worrying. A unit was sent and a welfare check on KB was carried out. KB was assessed as safe and well and left in the care of her parents. An e-mail was sent to the emergency duty team to support the police if needed.

On 30 July 2009, KB was placed in police protection as LB and RSB were arrested for suspected child cruelty against TA, KB's half-brother.

KB was placed in police protection on Thursday 30^th July 2009 following the arrest of LB and RSB.

29. The statement of the police officer is to like effect. She was present when the parents' home was searched on 30 July, and she says:-

I then entered the bedroom, the window to the bedroom was not covered the window had light blue curtains and a child like design. I could also see what appeared to be a "homemade" blind folded in a pile on the windowsill. I inspected the blind and found two pieces of wood both of which were of identical size and length – approx 80 cm x 20 cm. The wood appeared to of been cut from another piece of furniture possibly slats on a bed.

The main body of the blind was made with what appeared to be an old blue velvet curtain, there were a number of stains on the curtain, the origin of which I could not be sure of but on inspection appeared to be blood. I then held the wood and blind up to the window and could see what it would be a perfect fit and that the room would be in pitch darkness when erected. Sometime later the same day DC X and I made a further inspection of the blind by fitting it at the window. We then shut the door to the bedroom, with the blind fitted and door shut the room is pitch black, so much so I was unable to see my hand in front of me. The room in pitch darkness made me feel very uncomfortable and would be distressing for any person having to spend even a very short amount of time in it.

The window to the room was closed and I was able to see damage to either side of the plastic frame caused by the blind. With the windows closed the room had a very unpleasant smell which caused me to retch on a number of occasions.

The single bed in the room was located on the left hand side as you enter the room. If had an Action Man duvet covering. The bed on initial inspection appeared dirty and was covered in numerous stains. These stains again were later examined by SOCO and were suggested to be blood. I then looked on the underside of the duvet and could see what appeared to be heavy blood staining. My overall impression of the bed was that it was in a filthy state and would be a health hazard for any person having to sleep in it. I also felt given the amount of blood present, that TA would have been very distressed and frightened and would have suffered one or more severe nose bleeds.

There was also a very small white potty in the room located immediately on the left hand side as you entered. The potty was empty, although no clean. Besides the potty were some children's wipes, these I assume were for TA to clean himself. My impression of the potty was that it was designed to be used for a toddler and not a six year old. If TA had been allowed to leave his room the toilet was only a few feet from his door and was in working order. It was evident to myself that the potty was for TA's use as he spent long periods of time being locked in his room.

The floor to the bedroom was covered in a light beige dirty carpet. There were multiple stains across the floor all appeared to be blood drops. There was also particularly heavy blood staining near to the door and along by the side of the bed, some attempt of cleaning the blood was apparent near to the door, due to wipe and smudge marks.

Having spent a few minutes in the room, I felt very uncomfortable; my overall feeling was that any child spending any time at the address was at significant risk of harm. I then completed a walk around the rest of the property. It was very clear that TA's room was the most sparse, uncared for and dirty in the whole property. I would describe the rest of the house as being untidy and not particularly clean and besides a lock on the kitchen door there was nothing else that I can recall at that time to make me feel overall concerned. After this initial inspection, however, I later found that TA's toys were stored in plastic buckets in a cabinet in the lounge, out of reach it appeared of a child.

Following my inspection I went outside and spoke with HW. I informed her that at that time I felt that KB should be removed under a police protection order, my reasons for this were as follows:-

I felt that KB would be a significant risk of harm if she was to remain in the care of her parents. I felt that 2 year old KB would be too young to verbalise that she herself was also being subjected to abusive or cruel treatment. I had major concerns about the mental state of RSB and LB in that they had allowed TA to live under such cruel conditions for an extended period of time. I had real concerns about the blood in the bedroom and at that stage was unsure if it had been caused by injury to TA. I felt that although the evidence suggested that KB was being treated better than TA, we still had the evidence of EW that KB was being subjected to verbal abuse. I also felt that KB would have suffered emotionally in seeing the cruel treatment of TA. In my decision making I was aware that Lesley had had five other children previously removed and as I understood it there had been previous concerns of physical abuse and neglect.

30. Finally, for present purposes, the interview with EW is significant. She was 19. She and her boyfriend had lived at the parents' property for the previous two weeks in order to "look after" TA. Leaving on one side what she says about an earlier period when she was living full time at the house her interview with PC SS on 29 July 2009 contains the following: -

Q sorry, just go back slightly. (RSB) then went upstairs with TA when he was in the bedroom.

A. Yeah, he went in the bedroom with him and smacked him eight times and then told him to get into bed.

Q. How do you know he smacked him eight times?

A. I could hear it.

Q. Okay, and what could you hear TA doing?

A. He was screaming.

Q. And what does KB do whenever that was happening?

A. She gets told all the time by RSB that, ehm, TA is a bad boy, so she calls him a bad boy and then to me, "Oh, TA is a bad boy, TA is a bad boy," and I'm saying to her, "No, he's not, no, he's not".

Q. And what about your partner? Is he there?

A. Yeah, but he wouldn't help him because he's too scared as well.

Q. And how is TA when he comes back down?

A. Upset, he sound really upset. He gets told off if he doesn't say ehm, "please" and "thank you". He gets told off if he doesn't say "good afternoon", good evening everybody.

Q. Okay, what, he has to go round to each person?

A. No, he has to walk past the living room, saying "good morning", "good afternoon", "good evening everybody".

Q. Who tells him to say that?

A. RSB and my mum do.

Q. And what about KB: does she have to do that?

A. No.

Q. Okay, and then so he comes down, he has his meal? A. Yeah.

Q. Does he eat his food? A. He eats his food and then goes straight back to bed.

Q. No okay. So, basically, he's had no personal care since you've been there on the Sunday?

A. No.

Q. And we're now on the Wednesday night.

A. Yeah.

Q. Okay, and then we go into the Thursday morning. When mum gets home.

A. Yeah, mum – when mum comes in, mum goes upstairs and tells him off and smacks him a few more times and tells him off for, ehm, talking to RSB a bad attitude and, ehm, stuff like that, and just shouts at him constantly and then.

Q. Okay, so you didn't see her smack him.

A. Not that time I didn't no.

Q. But you could hear.

A. Yeah RSB tells him to get, get down the stairs, eat his breakfast and then he has to go straight back in.

Q. Okay, does TA say anything?

A. No.

Q. Okay, what happens with the potty?

A. TA has to empty it.

Q. Okay, where does he empty it?

A. Into the toilet.

Q. Right, okay, so he does his potty and then--?

A. Puts his potty back in his room and then comes downstairs for breakfast, and he's not getting chance to wash his hands after he's emptied the potty and stuff because he's not allowed it.

Q. So is there like, sometimes pooh in the potty?

A. Yeah.

Q. Okay, right, when he comes downstairs, does he ever look in a bit of a state, or--?

A. He looks in a bit – ehm, quite a bit of a state and he always says "good morning" to us because, because, if he doesn't, he'll get smacked and told off for it.

Q. And then what happens?

A. He goes straight back to his room.

Q. Okay, and then he goes back.

A. He goes back up to his bed, and Rob follows him up the stairs and shuts the door again.

Q. Right okay, and what would KB have?

A. KB has milk, coffee. Whatever she wants, basically, KB gets. But TA has to have, ehm, diluting juice; whereas KB's got special, ehm – like, they're not so much Fruit Shoots but they're like Fruit Shoots.

Q. Okay, and does KB ever try to get into the bedroom to see TA.

A. Ehm, yesterday morning when I had the door open, she went in to see TA. Her and TA are quite close but she's getting told bad things about TA, which makes her not want to talk to TA.

Q. Like, TA gets a jam sandwich. Would KB particularly get anything different?

A. She can have what she wants. She gets a choice of what she wants to eat.

Q. Okay, whereas he is just given.

A. What he's given he has to eat, yeah.

Q. Were the pyjamas that he's wearing.

A. He hasn't been changed.

Q. Okay, so that's the Friday night. Is there anything that's concerned you during that week about KB?

A. KB, ehm, yeah, she's, ehm, told off, like all sorts of things. Like, she whinges at night, ehm, because she's – she doesn't like the feel of her mattress on her belly, so she whinges because she wants a big cover fixed, ehm, on her bed.

Q. So she sleeps on a bare mattress, does she?

A. She's got a sheet on it but sometimes, when she moves too much, it comes off and she doesn't like it. She whinges, when, ehm, Cbeebies is finished. Ehm, she cries quite a bit, but it's just because she's a little baby and likes the attention, so.

Q. Okay, so theirs is more like shouting at her.

A. Yeah, she's get – she gets told off quite a bit, but not – it's more shouting at, and that, that she gets – ehm, she doesn't get smacked and that. But sometimes, when she does, ehm, get told off, he puts her in her bedroom.

Q. How would you describe his (TA's) appearance?

A. He smelled, like, ehm, really – I, I can't explain the smell. Was just – it's one of them smells that just like you haven't been in a bath for a whole, ehm.

Q. They just don't wash him. And you said to me that KB had had two baths whilst you were there.

A. Yeah.

Q. Is there a reason why you didn't bath TA?

A. I could have bathed him on the Saturday night but I was too scared to, in case they come back.

Q. Why do you think your mum would hurt you?

A. She's hurt me before.

Q. Okay, the only blood that had been cleaned off of him, I think, was the blood off of his face.

A. I cleaned his hands, yeah.

Q. What did he say to you? A. Ehm, he told me – I asked him his name, his full name, and he told me his full name. And then I asked him what, what goes on when he's in the house with RSB, and he told me that he cries, and I asked him why, and he told me that he's scared of RSB because RSB hits him. And I said, "is it a soft, soft smack, or is it a hard one?" and he said a hard one, and I said "Is it a hard hard one, or is it just hard?" and he said "A hard hard one". He said "And sometimes he hits me with wood" which then got me a bit more panicky because I thought, oh, wood is a bit dangerous and I said to him not to worry about that. Ehm, I asked him also why he didn't talk to the social worker and he said that he's scared and didn't want to get in trouble for telling them what happens, and I said "They're there to help you. They're not going to tell you off. You're not going to get in trouble They're there to help", and ehm, I said "Don't worry about it. I'll sort it. You're not in – you're going to be in safe hands soon, I promise" and I gave him a cuddle and a kiss and told him he had nothing to worry about, and that he would be getting help soon. Ehm, finished with the room and went downstairs and, ehm, phoned my sister and said to my sister and my auntie what he had told me, and then that's when they decided what they were going to do.

Q. Okay, all right, that would be very useful for us. If you look back now, what do you think you should have done, looking back over the week?

A. Should have said something to somebody before, but I just wanted a bit more evidence.

The judge's approach

31. The direction which the judge gave himself as to the law cannot, in my judgment, be faulted. On the basis that he found the section 38(6) criteria satisfied in relation to both children, as he did, the question he posed himself was "whether the continued removal of KB from the care of her parents is proportionate to the risk of harm to which she will be exposed if she is allowed to return to her parents' care"?
32. However, the judge follows this immaculate self-direction with a paragraph which, in my judgment, and making every allowance for the fact that this was an extempore judgment is in my judgment, both muddled and plainly wrong. This is what he says:-

If, of course, I am right in thinking that the very fact of being given that privilege of returning home, when TA is denied it, may itself be an occasion of harm to KB, then the proposal that she should be returned to their care must be doubted but that remains no more than a judge's memory of evidence about differentiation which he has heard in other cases. Such evidence is not yet available in this case. It may never be available in this case. I do not think it would be right to place heavy emphasis upon it.

33. In my judgment, the judge was plainly right in thinking "that the very fact of being given that privilege of returning home, when TA is denied it, may itself be an occasion of harm to KB". However, he was plainly wrong in my judgment when he found that "such evidence was not yet available". It clearly was, not least in the extracts from the statement of the police officer and the video interview with EW which I have set out above. The judge did not have to make findings of fact about it. What he had to decide was whether the evidence of the police, Ms W and EW satisfied him that there were reasonable grounds for believing that the circumstances with respect to KB were as mentioned in section 31(2) of the Act. Manifestly, that was the case, as the judge rightly found. Moreover, it seems to me, the judge is at this point not properly addressing the local authority's case, which he had previously summarised accurately: - see the citation at paragraph 24 above.
34. How does the judge develop his thinking? Firstly he accepts an assurance from the father's counsel that "his client was content to cooperate with close monitoring of KB in the care of her parents", although he recognises that the very fact of her close relationship with her father "only increases the risk to her of exposure to disagreement" between them.
35. He continues by expressing his disagreement with the guardian. He does so in the following terms:-

It is not often that a judge disagrees with a recommendation of the children's guardian, and if I do so in this case, it is not because I have any disregard or disrespect for Mrs W whom I believe to be an experienced guardian. I am fairly new to the Thames Valley but that much I have learned. She herself recognises that her inquiries are at a very early stage, and the way in which she expresses herself in her recommendation does, it seems to me, represent, (I do not criticise her for this because she is not here as a lawyer) the wrong approach, or an approach which is not open to me as a judge. She appears to seek to preserve the status quo when she says that it is too soon to recommend any marked changes to the current situation for either child: it would not be in the best interest of either child to experience other change of placement until further planning has taken place. I recognise the force of the argument that there should only be one move for KB and not a succession of moves when she has settled reasonably well in foster care and she is happy enough there, perhaps one should not say happy.

36. I leave on one side for the moment whether or not this is an accurate reflection of the guardian's concerns, or indeed whether the guardian had adopted the wrong approach. What the judge plainly fails to do, in my judgment, is to address the seriousness of the evidence which is placed in the scale against the return of KB to her parents' care, and explain properly why the judge was departing from the guardian's recommendation.
37. What other factors does the judge weigh? Immediately following the passage I have just cited, the judge effectively expresses his conclusion by saying:-

Having taken account of all that, I have been persuaded that it is not appropriate for (KB) to remain in foster care at the present time, and therefore that there should not be an interim care order which would bring foster care with it. That would not be in her interest and it would not be proportionate to the risk of harm which she would face in the care of Mr and Mrs B. It is idle to pretend that there is no risk to her in the care of Mr and Mrs B. I have alluded only to the most obvious. There plainly is risk if she is returned to the care of her parents, and the monitoring to which Mr B has expressed his willingness to submit is plainly going to be required if she does live in the care of her parents. For that purpose there must be an interim supervision order for (KB).

38. In fairness to the judge, it needs to be said that, earlier in his judgment, he had described KB "until the events at the end of July" as "a happy, contented little girl, developing normally and fond and loving towards both her parents".
39. The judge also accuses the local authority of a "volte-face" in its view of KB. This is a serious accusation, and needs to be examined with care. What the judge actually says is the following:-

It is a striking feature of the case that the local authority has, if I may paraphrase submissions that have been made to me on behalf of Mr and Mrs B, done a volte-face in its view of (KB). She has hitherto been seen to be a child who was at least well enough, if not well, looked after. I think it is also fair to say that the evidence so far does not show that the local authority has given much consideration to the possible adverse effect on (KB) of being so much the preferred child in the B household as now appears, not only from the evidence provided by the Local Authority but from the evidence provided by Mr and Mrs B in their statements as well.

40. For the local authority, Mr Henry Setright QC responds politely but firmly to this part of the judgment. He argues that the judge's view that the local authority, after the events of 28 July 2009, had exhibited a "volte-face" is unfair. He submits that, prior to that date, the local authority had attempted to work in partnership with the family. However, the sudden emergence of the allegations of TA's ill treatment, and the gravity of that ill treatment, at a time when the parents were undergoing parenting guidance and assistance, caused the local authority to re-assess the risk factors to these children when placed within their family.
41. Mr Setright adds that by describing the decision making process as a "volte-face" the judge may have failed to understand that the local authority properly reacted and re-assessed the risk in light of this new and extremely concerning evidence. He further submits that whether or not the local authority's attitude towards the risks posed to KB constituted a "volte-face", this was or should have been an irrelevant factor in assessing the risks to KB on 4 September 2009, on the evidence then before the court.
42. In my judgment, there is considerable force in Mr. Setright's submissions on this point, and I am content to adopt them. Up until its discovery of Mr and Mrs B's treatment of TA, the local authority, fulfilling its duty under the Act, was attempting to support the family and keep it together, notwithstanding the volatility of the parents' relationship, of which there was abundant evidence. Following its discovery of TA's ill-treatment, he was removed immediately. KB was removed three days later. To describe such conduct as a "volte-face" is, in my judgment, plainly wrong, and illustrative of what Mr. Setright submits is the judge's overall failure to give sufficient weight to the risk to KB of a return to the household of Mr and Mrs B.
43. Mr Setright submits further that the harm suffered by TA, if proved, is at the most severe end of the spectrum of emotional and psychological abuse, and that this was a matter to which weight and significance should have been attached when considering the position of KB. At the hearing on 4 September 2009 there was cogent evidence in support of these allegations, Mr. Setright points to the evidence of Ms HW, EW and the evidence to the judge of TA's fluctuations in weight whilst in his parents' care.
44. Mr. Setright further submits that, whilst the judge was impliedly critical of the description of the conditions in which TA was expected to live as "lurid and emotive terms" his own conclusion in respect of TA's treatment in paragraph 15 was inadequate. The judge said: "it is clear that (TA) was being expected to live in conditions which were not appropriate for him and which did not represent good parenting." Mr. Setright submits that a cautious approach by the judge to fact-finding in an application under s.38 appears to have resulted in a minimisation of appreciation (and therefore the application of weight to) the harm that TA may have been suffering. He further submits that the judge failed to appreciate the gravity of the harm that it is alleged that TA suffered which, was intentional, flagrant and extreme. This flawed assessment of the treatment of TA was a starting point for any subsequent balancing exercise that the Judge undertook when deciding the risk to KB of returning to her parents' care.
45. Mr Setright further submitted that the judge had before him cogent evidence (plainly referable to his threshold finding) that the situation into which KB would be placed if returned from interim care would itself be unstable. In her statement, the mother had outlined the many separations and reconciliations between the couple. Whilst acknowledging that the relationship between the two parents was volatile, the judge had not placed sufficient weight on the overwhelming probability that this volatility would continue. Mr. Setright also pointed out that the father admitted to lying to Ms. HW when she attended at the home on 28 July 2009 when he denied that TA was at home. The only reasonable conclusion to be drawn from this, Mr. Setright argued, was that the father was trying to prevent the child care professionals from seeing the squalor in which TA was living.
46. Mr Setright further submitted that the judge did not apply the facts of this case in any or any detailed way to the factors under the welfare checklist, to provide cogent reasons for his finding that it was not in KB's best interests to remain in foster care. In short, Mr. Setright argued that not only was the judge's performance of the "balancing exercise" flawed, but that the judgment was insufficiently reasoned.
47. Both Mr Setright, and Mr Bedingfield, for the guardian, sought to introduce fresh evidence of events which had occurred since 4 September 2009. We did not rule on their applications, nor did we examine the evidence. In my judgment, we were right not to do so. Events which have occurred, or are alleged to have occurred since 4 September 2009 are a matter for the judge on any renewed application or the resistance to it. We are primarily concerned with whether or not the judge reached the right conclusion on 4 September.
48. For the guardian, Mr. Bedingfield very largely anticipated the submissions made by Mr. Setright. For the parents, Mr Fuller and Miss Granshaw adopted what I hope can be described without offence as the classic discretion arguments. The judge had made no error of law: he had directed himself impeccably as to the matters which he should and should not take into account and he had reached an entirely permissible conclusion.

Discussion and analysis

49. Such arguments would, I think, succeed in the overwhelming majority of cases. On the facts of the instant case, however, I am in no doubt whatsoever that the submissions of Mr Setright and Mr Bedingfield are to be preferred.
50. In my judgment, we are in classic G v G [1985] 1 WLR 645 territory: see Lord Fraser's approval at [1985] 1 WLR 645. 650 of the judgment of Sir John Arnold P in the same case. The judge, with due respect to him, has both failed properly to conduct the necessary balancing exercise, and has failed to explain why he has taken the course he has. By describing the treatment of TA as "being expected to live in conditions which were not appropriate for him, and which did not represent good parenting", the judge, in my view seriously understated the treatment of TA and thus minimised the risk of harm to KB. By repeatedly stating that he was not able to make findings of fact on the evidence available, the judge seems to have shut his eyes to the seriousness of what had been disclosed. Furthermore, he did not give cogent reasons for departing from the guardian' recommendation.
51. In combination, as it seems to me, these factors vitiate his judgment, and enable this court to exercise is discretion afresh.

Interim care orders and authority

52. So far, I have considered the appeals without any reference to authority. However, when I asked myself the questions set out in paragraph 9 above, I thought I would, first of all, look at a textbook and then at some of the cases. I looked first at Rayden & Jackson on Divorce and Family Matters 18^th edition, 2005 where, at paragraph 40.40, I found the following:-

The making of an interim care order is an essentially impartial step which effectively maintains the status quo and does not give a local authority in whose favour it is granted a tactical advantage over other parties; the regime of an interim care order should operate as a tightly run procedure closely monitored by the court and affording all parties the opportunity of frequent reviews as events unfold.

53. For these propositions, three authorities are cited, two of which are decisions of this court Re G (Minors) (Interim Care Order) [1993] 2 FLR 839 and Re M (a minor)(Appeal: interim order)(No 1) [1994] 1 FLR 54.
54. From the textbook, I turned to the latest decision cited to the judge, namely the decision of this court in Re L-A, decided as recently as 14 July 2009. The judge does not appear to have read this authority carefully. He dismisses it (and the judgment of Ryder J in Re L [2008] 1 FLR 575) by asserting that in the former case, this court "has expressed its disapproval of the gloss which was encapsulated in the snappy phrase 'imminent risk of really serious harm".
55. In my judgment, Re L-A says a great deal more than this. Of course the facts were different, and of course the circumstances in which an interim care order is called for are various. However, what Thorpe LJ said in Re L-A and in the earlier cases repays re-reading. In discussing Ryder J's use of the phrase "imminent risk of really serous harm", Thorpe LJ said:-

7. It is common ground at the bar that Ryder J did not intend to restate or to alter the approach that appears from the two Court of Appeal cases that I have already cited, augmented by a third case in this court, namely Re K and H [2007] 1 FLR 2043. That is transparent from paragraph 10(a) of the report where Ryder J identifies the source of the summary as being my judgment in the case of In Re H. What is it then that the three authorities in this court seem to establish? In the first, the case of Re H, the crucial paragraphs are 38 and 39, from which can be extracted two propositions, the first that the decision taken by the court on an interim care order application must necessarily be limited to issues that cannot await the fixture and must not extend to issues that are being prepared for determination at that fixture. The second proposition which appears from the final sentence of paragraph 39 is that separation is only to be ordered if the child's safety demands immediate separation. In the subsequent case of Re N in paragraph 27 I described that a local authority in seeking to justify the continuing removal of a child from home necessarily must meet a very high standard. In the final authority, K and H, the key paragraph is paragraph 16 in which I described the court's approach thus:

at an interim stage the removal of children from their parents is not to be sanctioned unless the child's safety requires interim protection.

10. In my judgment it is clear beyond argument that HHJ Cleary construed paragraph 10 of the decision in Re L as a decision that altered the law and that raised the bar against the applicant local authority. By that evolution he was bound and only the Court of Appeal could unbind him. For the reasons already sketched, that, in my view, was a misdirection. Plainly the judge was wrong to think that the words of Ryder J that there should be an imminent risk of really serious harm prevented him from doing what he instinctively felt the welfare of the children required. That that was his instinct seems to me to be plain from paragraph 160 of his judgment.

56. Speaking for myself, I find Re L-A helpful. I agree with the judge that the section 38 criteria were plainly met in relation to both children, but it is equally clear to me that KB's welfare did demand her immediate removal from her parents' care, and that there was abundant material (not least the views of the police) which warranted that course of action. In my judgment, KB's safety, using that word in a broad sense to include her psychological welfare, did require interim protection.
57. We were told that the parents have now separated, so that KB's return, were it to be ordered, would be to the mother's care. KB and TA are currently in the same foster placement, where each is being appropriately and properly treated. Whilst in due course, if both children are not finally returned to the care of their mother, they may go their separate ways (TA's father is, we were told, seeking a residence order in relation to him) in my judgment KB's best interests are for the time being are better served by them being together in the same, safe, placement than KB being placed with her mother, whilst TA remains in foster care.
58. It follows, in my judgment, for all the reasons I have rehearsed and which I have no wish to repeat, that the judge was plainly wrong not to make an interim care order in relation to KB.
59. I do repeat, however, that the final outcome of this case remains to be decided by the judge on all the evidence available to him at the final hearing. In this respect, I reiterate; (1) my understanding of the purpose and effect of interim care orders are set out in paragraph 50 above; and (2) that nothing in this judgment is to be read as indicating, one way or the other, what the final outcome should be.

Lord Justice Thorpe

60. I agree.