(Court of Appeal; Thorpe and Maurice Kay LJJ; 14 July 2009)
The local authority initiated care proceedings on the grounds of chronic neglect. When a social worker reported that the chronic neglect was deteriorating into something worse, the authority, taking the view that the four children were in jeopardy, sought leave to remove them into foster care pending the final hearing; the guardian supported the authority's application. The final hearing was due to take place some 8 months later, the original date having been vacated because of the need to obtain a further psychological assessment of the mother. The judge declined to remove the children in the interim, on the basis that, applying Re L 1 FLR 575, a child could only be removed from the family home if there was 'an imminent risk of really serious harm'. The judge therefore made an interim care order on the basis that the children would remain in the family home. The authority appealed, supported by the guardian. Counsel for the authority suggested that practitioners and local authorities had begun to treat the phrase, 'an imminent risk of serious harm', as though it were the key definition of the standard that must be achieved to justify the making of an interim care order.
It was clear that the judge in Re L  1 FLR 575 had not intended to restate or to alter the approach set out by the Court of Appeal in Re M  1 FLR 1043, Re H  FCR 350 and Re K and H  1 FLR 2043; the judge in Re L had been bound by the Court of Appeal authorities, and he had plainly recognised this. It was equally clear that the judge in the instant case had construed the comments of the judge in Re L as a decision that altered the law, raising the bar for removing children at an interim stage. That was a misdirection. Plainly the judge had been wrong to think that the words 'an imminent risk of really serious harm' prevented him from doing what he instinctively felt the welfare of the children required. The appeal must therefore be allowed. Given that some improvement had been seen in the mother's standard of care, the case would be remitted for retrial.