by Allan Norman
Behind this question lies the controversial caselaw phrase from 2007, that such an order required an "imminent risk of really serious harm". This, in turn, has led to social workers expressing concern that they cannot properly protect children if the threshold is so high; and even that judges are re-writing the law.
It is unsurprising that the question has come back for re-examination. It is disappointing that yesterday saw no clear and satisfactory answer.
Back in July, the Court of Appeal examined the phrase "imminent risk of really serious harm", and appeared to fudge the issue by reaching two conclusions that do not seem to easily sit together: the phrase did not re-write the law, but the judgement was not wrong. So, those who like the phrase will emphasise that the judgement containing it was correct, while those who dislike it will emphasise that it did not establish new law, and the words of the original legislation are still our starting point.
The latter is what the judge did in the decision under appeal yesterday:
For this belittling of the caselaw he was roundly criticised. But unfortunately, the court yesterday seems to have asked itself really relevant questions ...and then failed to answer them. The judge poses three questions: What is an interim care order? What is it for? And in what circumstances should it be made? He quotes a legal text, that:
Leaving aside that this does not answer any of the questions posed, many would also see it as a naïve evaluation of the effect of the Order. Interim Care Orders are fiercely contested in part precisely because the physical location of children throughout protracted proceedings is taken into account at the final stage. Unfortunately, telling us what an Interim Care Order is not inevitably rubs salt into the wound for parents who know that is still its effect.
So let's be open about the real issue between social workers and the judges: an EPO and an ICO do not have the same threshold test. Social Workers could live with the threshold test for an EPO, but its duration is frustratingly short. Social Workers would like to be able to use an ICO as a tool to protect a child in an emergency, but glosses on the threshold test like "imminent risk of really serious harm" seem to be standing in their way. But is not the conflation of the tests for EPOs and ICOs just as much a re-writing of the law as that of which the judges stand accused?
An authoritative judgement is still needed that answers the three questions posed by the Court. And while they are at it, could the court please also lay to rest which, if either, rewriting of the law it will endorse: the conflation of EPOs and ICOs, or the "imminent risk of really serious harm" test.
Back in July, the Court of Appeal examined the phrase "imminent risk of really serious harm", and appeared to fudge the issue by reaching two conclusions that do not seem to easily sit together: the phrase did not re-write the law, but the judgement was not wrong. So, those who like the phrase will emphasise that the judgement containing it was correct, while those who dislike it will emphasise that it did not establish new law, and the words of the original legislation are still our starting point.
The latter is what the judge did in the decision under appeal yesterday:
"my starting point must be the Act itself and not glosses which have been put onto it on the facts of particular cases... my experience of care cases is that case law is a dangerous guide".
For this belittling of the caselaw he was roundly criticised. But unfortunately, the court yesterday seems to have asked itself really relevant questions ...and then failed to answer them. The judge poses three questions: What is an interim care order? What is it for? And in what circumstances should it be made? He quotes a legal text, that:
"The making of an interim care order is an essentially impartial step which... does not give a local authority in whose favour it is granted a tactical advantage over other parties..."
Leaving aside that this does not answer any of the questions posed, many would also see it as a naïve evaluation of the effect of the Order. Interim Care Orders are fiercely contested in part precisely because the physical location of children throughout protracted proceedings is taken into account at the final stage. Unfortunately, telling us what an Interim Care Order is not inevitably rubs salt into the wound for parents who know that is still its effect.
So let's be open about the real issue between social workers and the judges: an EPO and an ICO do not have the same threshold test. Social Workers could live with the threshold test for an EPO, but its duration is frustratingly short. Social Workers would like to be able to use an ICO as a tool to protect a child in an emergency, but glosses on the threshold test like "imminent risk of really serious harm" seem to be standing in their way. But is not the conflation of the tests for EPOs and ICOs just as much a re-writing of the law as that of which the judges stand accused?
An authoritative judgement is still needed that answers the three questions posed by the Court. And while they are at it, could the court please also lay to rest which, if either, rewriting of the law it will endorse: the conflation of EPOs and ICOs, or the "imminent risk of really serious harm" test.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
Leave a comment