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H-W (Children) and In the matter of H-W (Children) (No 2)
Factual and Procedural Background
The appeals arise from care orders made on 26 July 2021 directing that three siblings (C, D and E, aged 14, 11 and 9) be removed from their mother’s home and placed in separate long-term foster care. The first appellant is the children’s mother (“Appellant M”); the second appellant is her partner (“Appellant F3”). The respondent is the local authority (“The Local Authority”).
Local authority involvement with the family stretches back to the mother’s own childhood. In November 2019 the mother’s adult son (“A”) sexually abused child E while visiting the home. A non-molestation order against A and an injunction against child E’s father (“F2”) were already in place, yet A was allowed unsupervised access. On 31 March 2020 the Local Authority issued care proceedings, asserting a failure by Appellant M and Appellant F3 to protect the children from sexual harm.
After separate fact-finding and welfare hearings, the trial judge ( “Judge of First Instance”) accepted the threshold under section 31(2) Children Act 1989 and, following a six-day welfare hearing, ordered removal of C, D and E. A fourth child, F (aged 2), remained at home pending additional assessment.
The Court of Appeal (majority: Judge Lewison and Judge Laing; dissent: Judge Jackson) upheld the orders on 7 October 2021. The present court granted permission to appeal, framing two questions directed to proportionality and appellate review. A stay on removal remained in force throughout the appellate process.
Legal Issues Presented
- Whether, to decide if removal into foster care is proportionate, a court must expressly assess: (a) the likelihood of sexual harm; (b) the consequences if such harm occurs; (c) the possibility of reducing or mitigating the risk; and (d) the comparative welfare advantages and disadvantages of the options.
- Whether the trial judge erred in law by failing to conduct that assessment and corresponding balancing exercise.
- What standard of review an appellate court should apply to a trial judge’s disposal decision in care proceedings.
Arguments of the Parties
Appellants’ Arguments
- The judge failed to undertake a rigorous “side-by-side” comparison of all realistic options, especially less-intrusive alternatives such as supervision orders combined with injunctions.
- No evaluation was made of the protective effect of existing non-molestation and injunction orders or of support services that could mitigate risk while preserving family unity.
- The emotional harm of separating siblings and removing them from their mother was not balanced against the assessed sexual-risk harm.
The Local Authority’s Arguments
- A longstanding pattern of “repeated lapses in protection” demonstrated that only care orders could secure the children’s safety.
- Although the judgment did not recite every option, the judge had the evidence and could be taken to have considered the full range of possibilities.
Children’s Guardian’s Position
- Initially supported the Local Authority but, during the appeal, adopted “reluctant support” for the appellants, accepting that the judgment lacked an explicit proportionality analysis.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re B (A Child) [2013] UKSC 33 | Care orders engage Article 8; order must be necessary and proportionate; appellate review proceeds by review, not rehearing. | Formed the doctrinal foundation for analysing proportionality and the limits of appellate intervention. |
| In re B-S (Children) [2013] EWCA Civ 1146 | Requirement of a holistic, side-by-side evaluation of all realistic options. | Cited as authoritative guidance on the evaluative exercise the judge should have performed. |
| In re G (A Child) [2013] EWCA Civ 965 | Articulation of the balancing exercise weighing positives and negatives of each option. | Quoted (via In re B-S) to describe the standard of reasoning expected at the disposal stage. |
| Piglowska v Piglowski [1999] UKHL 27 | Emphasises appellate deference to findings of a judge who has heard live evidence. | Referenced when discussing the Court of Appeal majority’s reluctance to disturb the trial judge’s decision. |
| R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47 | Warns against over-analysis of an appellate judge’s subjective state of mind; focus on material error. | Used to clarify that the real question is whether the judge’s process was flawed, not whether the appellate court “would have done the same.” |
Court's Reasoning and Analysis
Relying on In re B and subsequent authority, the court reaffirmed that a care order removing children from their family must be the least intrusive, necessary and proportionate measure. That test obliges the judge to:
- Identify the nature and likelihood of the risk (sexual harm) and its consequences;
- Evaluate whether risk-reduction measures short of removal could suffice;
- Conduct a comparative, holistic assessment of each realistic option, including emotional harm caused by separation;
- Demonstrate, within the judgment, consideration of the entire range of statutory powers (welfare checklist, para (g)).
The trial judge acknowledged proportionality in principle but omitted the required side-by-side analysis. Notably, he did not address the existing injunction against F2, the non-molestation order against A, or how additional supervision, safety planning or sibling placement options might mitigate risk. Nor did he explicitly balance the harm of removal and sibling separation against the identified sexual-risk harm.
Because that evaluative deficit is a legal error, the appellate court could not determine whether the orders were indeed proportionate. Consistent with In re B, the Supreme Court refrained from substituting its own welfare assessment and instead concluded that the proper course is to remit the matter for rehearing before a different judge.
Holding and Implications
APPEALS ALLOWED; CARE ORDERS SET ASIDE; CASE REMITTED FOR REHEARING BEFORE A DIFFERENT JUDGE.
Direct Effect: The stay on removal remains; a new hearing will reconsider the children’s future, likely alongside outstanding proceedings concerning their youngest sibling.
Broader Implications: The decision reinforces that judges must evidence a rigorous, option-by-option proportionality analysis when contemplating removal. It also confirms that appellate courts review rather than remake welfare evaluations, intervening when the first-instance reasoning process is legally inadequate.
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