Appellate restraint in welfare appeals: future-focused risk evaluation and permissible bespoke allocation of decision-making without conferring parental responsibility

1. Introduction

Re P (No 2: Welfare) [2026] EWCA Civ 571 is a supplementary judgment of the Court of Appeal (Civil Division) (Sir Andrew McFarlane P, Lady Justice King, Lord Justice Stuart-Smith) dealing solely with outstanding welfare issues in one of three conjoined appeals previously determined in Re J, M and P (Loss of Parental Responsibility) [2026] EWCA Civ 344.

The underlying proceedings concerned arrangements for a child (“P”) within a family structure involving the child’s mother, and two men (“Father 1” and “Father 2”), where paternity could not be resolved and (following the main appeal) any parental responsibility previously arising from Father 1’s presence on the birth certificate had been removed. The Family Court (HHJ Reardon) made (i) child arrangements orders placing the child’s primary home with the mother but providing regular contact with each father, (ii) orders concerning travel out of the jurisdiction, and (iii) a tailored scheme describing who could make which categories of parental decisions, without conferring parental responsibility via a child arrangements order.

Father 2 appealed on welfare grounds, principally challenging (a) the assessment of risk following a past incident where Father 1 removed the children in breach of an interim order, and (b) the evaluation of the child’s psychological understanding of family relationships under the ordered arrangements. The mother supported Father 2’s welfare appeal; Father 1 and the guardian opposed it.

2. Summary of the Judgment

  • The Court of Appeal dismissed Father 2’s welfare appeal on both grounds (Grounds 5 and 6).
  • The court held that the trial judge did take account of the June 2024 breach and was entitled, as a welfare evaluator, to focus on future risk rather than provide a detailed backward-looking harm analysis, absent clear evidential demonstration of specific harm.
  • The court rejected the contention that the judge failed to consider the child’s psychological understanding of family relationships; the judgment showed the issue was treated as central.
  • The court refused attempts to broaden the appeal to obtain fresh orders (including conferring parental responsibility on Father 2 and re-imposing restrictive orders against Father 1), indicating that such matters were beyond the appeal’s scope and, in any event, did not follow from the failed appeal.
  • The court declined the mother’s request for an order requiring the court’s March 2026 order to be produced alongside the birth certificate when relied on, questioning both jurisdiction and utility.

3. Analysis

3.1 Precedents cited

The only cited authority is the Court of Appeal’s earlier conjoined decision: Re J, M and P (Loss of Parental Responsibility) [2026] EWCA Civ 344.

Its relevance in this supplementary judgment is primarily procedural and contextual:

  • It explains why the appeal is limited to welfare issues for P (the paternity/parental responsibility questions were addressed in March 2026).
  • It frames the “new” practical reality: paternity remains unresolved, but Father 1’s parental responsibility derived from registration is removed—yet the trial judge’s welfare framework had already been crafted with the anticipated appellate scrutiny in mind.

The judgment is therefore less about developing doctrine through external precedent than about applying orthodox appellate principles to a highly fact-specific welfare evaluation.

3.2 Legal reasoning

(a) Ground 5: past breach incident and future risk

Father 2 focused on a June 2024 incident in which Father 1 removed the children from a party and took them to his home for several days in breach of an interim order and without the mother’s or Father 2’s knowledge, leading to police involvement. The appellate complaint was that the trial judge did not adequately balance the harm and therefore should have imposed tighter safeguards (including stepped contact and maintaining prohibitions).

The Court of Appeal accepted a narrow point: the first-instance judgment did not expressly describe harm to the child from that incident. But that omission did not establish appellate error because:

  • The judge did address the incident and treated it as relevant to future risk, concluding it was less likely to recur if an arrangement better meeting the children’s needs was ordered (referencing the trial judge’s paragraph 94).
  • Welfare adjudication is inherently prospective: past events matter insofar as they inform future welfare and risk; weight is for the trial judge unless the conclusion is not reasonably open on the evidence.
  • Father 2 did not take the court to concrete evidence detailing the child’s impact beyond general submissions of “significant worry”, leaving the argument largely abstract at appellate level.

The court also noted a practical appellate point: where the alleged defect is the absence of a more gradual “step-up”, the appeal may be academic when heard over a year after implementation—particularly where the trial judge had expressly contemplated a transitional period and offered to resolve the detail on the papers if the parties could not agree.

(b) Ground 6: psychological understanding of family relationships

Father 2 argued the judge failed to analyse the psychological consequences of the arrangements for the child’s understanding of their place in the family, and placed too much weight on “equality” (re-establishing Father 1) rather than stability and the status quo supported by the guardian.

The Court of Appeal rejected the premise. It pointed to:

  • The trial judge’s detailed treatment of “the children’s understanding of family relationships” (six paragraphs), and separate “narrative” guidance on how the child might be introduced to the truth about paternity complexity.
  • The reality that, where paternity cannot be determined, the child’s lived relationships and narrative coherence become the core welfare terrain; the judgment demonstrated sustained engagement with that terrain.
  • The orthodox appellate restraint: disagreement about “weight” does not show that the judge’s welfare conclusion was outside the range of reasonable outcomes.

The court added a common-sense welfare observation: where it may be that Father 1 is the child’s biological father (and is the father of a sibling), it is hard to characterise as wrong a regime ensuring “ordinary and regular” contact, even if Father 2 would have preferred a lesser role for Father 1.

(c) Attempts to expand the appeal: parental responsibility and further protective orders

In later written submissions, Father 2 sought to broaden the relief sought: an order granting him parental responsibility (via a “lives with” order under Children Act 1989, ss 8 and 12, or “under s 4”), plus orders preventing Father 1 from removing the child from care or taking the child abroad without permission.

The Court of Appeal refused this reframing. It held, in substance, that:

  • Since the welfare appeal failed, the court would not re-make welfare/PR orders on a new basis.
  • New relief not pursued at first instance and not properly within the granted appeal is not appropriately determined for the first time on appeal; if anything requires reconsideration, it should be pursued at first instance.

(d) The trial judge’s “bespoke decision-making” approach without conferring parental responsibility

Although not required to determine it (given dismissal of the appeal), the Court of Appeal offered observations on HHJ Reardon’s approach: rather than use Children Act 1989, s 12(2) or s 12(2A) to confer parental responsibility on one or both men via a child arrangements order, she:

  • Recognised the mother’s pre-eminent status for day-to-day parental decisions;
  • Carved out specified “high-level” decisions requiring consultation; and
  • Ensured both men could do what is reasonable when the child was in their care, reflecting Children Act 1989, s 3(5).

The court characterised this as “unusual” but not legally impermissible—a pragmatic, clarity-focused framework in unusual facts and an unsettled paternity landscape, especially given the known pending appellate litigation.

(e) The birth certificate “paired production” request

The mother sought an order requiring any reliance on the birth certificate to be accompanied by the March 2026 court order removing Father 1’s parental responsibility, including for bodies such as HM Passport Office. The Court of Appeal declined: it did not arise from the welfare appeal, jurisdiction was doubtful, and practical utility was questionable (production of the order would not resolve paternity).

3.3 Impact

The decision is significant less for a novel statutory interpretation than for clear appellate guidance in difficult welfare litigation:

  • High threshold for welfare appeals: focusing on an alleged omission about a single episode is unlikely to displace a holistic welfare evaluation after a multi-day hearing, absent a demonstrable evidential foundation and a conclusion outside the reasonable range.
  • Future-focus in welfare reasoning: the appellate court endorsed a trial judge’s emphasis on forward-looking risk management rather than exhaustive retrospective harm findings where the welfare analysis is otherwise comprehensive.
  • Timing and academicity: where orders have been implemented for a substantial period, complaints about the “gradient” of a transition (step-up) may carry reduced force, particularly if the first-instance court created a mechanism to manage transition.
  • Case-management discipline on appeal: parties cannot readily expand welfare appeals into new applications for parental responsibility or additional restrictions; such matters ordinarily belong at first instance.
  • Pragmatic structuring of decision-making: the court’s approval (in principle) of a bespoke “who decides what” structure—without conferring parental responsibility—may encourage tailored drafting in exceptional family configurations, provided it remains anchored to welfare and statutory powers (including s 3(5)).

4. Complex concepts simplified

Welfare evaluation / welfare discretion
The court’s primary task in Children Act cases is to decide what best promotes the child’s welfare. This involves judgment and weighing; different reasonable judges may legitimately reach different outcomes on the same facts. On appeal, the question is not “would we have decided differently?” but “was the decision wrong—outside what was reasonably open on the evidence?”
Child arrangements order (“lives with” / “spends time with”)
An order under Children Act 1989, s 8 setting where a child lives and when the child spends time with others. A “lives with” element can have additional legal consequences (including potential routes to parental responsibility via s 12).
Parental responsibility (PR)
The legal authority and duties of a parent to make decisions for a child. PR can arise automatically (e.g., for a mother) or through specific legal routes (including agreement, registration in some circumstances, or court order such as under s 4 or via s 12 mechanisms). The case illustrates that, in unusual situations, courts may instead specify consultation requirements and practical authority during care periods without conferring PR.
Children Act 1989, s 3(5)
A person who has care of a child (but may not have PR) can do what is reasonable in all the circumstances to safeguard or promote the child’s welfare while the child is in their care.
Prohibited steps order
A court order preventing a person from taking a particular step in relation to a child (for example, removing the child from another’s care or taking the child abroad).
Permission to remove from the jurisdiction
Rules controlling when a child can be taken outside England and Wales. The trial judge equalised short-term (up to 28 days) permission among the three adults in this case; the appeal challenged permission being extended to Father 1.
“Narrative”
A structured, child-appropriate explanation of family relationships and origins. Here it referred to how the adults might, in time, explain the complex reality around paternity in a way that supports the child’s emotional security and identity development.

5. Conclusion

[2026] EWCA Civ 571 reaffirms that welfare appeals face a formidable barrier: an appellant must show not merely that different weight could have been given to particular facts, but that the first-instance welfare decision was not reasonably open on the evidence. The court endorsed a future-focused approach to past breaches, rejected claims that the child’s psychological understanding was overlooked where the judgment showed sustained engagement, and insisted on proper boundaries between appellate review and fresh welfare/PR applications. The decision also signals appellate tolerance—where justified by unusual facts—for bespoke orders clarifying practical decision-making without formally reallocating parental responsibility.