L-G (Children: Risk Assessment)

Factual and Procedural Background

This appeal concerns two children, a girl aged 5 and a boy aged 1, who had lived with their mother until the order under appeal. The mother provided excellent care, and the children were thriving. The girl spent regular time with her father by agreement. The boy's father, referred to as Defendant, was found by the trial judge to be violent and likely to harm any child in his care. The mother and Defendant began a relationship in December 2022 but did not live together. Upon the boy's birth, a local authority applied for a supervision order to protect the children from Defendant. An interim supervision order was made, with the mother undertaking to limit and supervise Defendant's contact with the boy.

Shortly before trial, the mother stated she had separated from Defendant; however, the judge doubted the genuineness of this separation absent social services involvement. The mother was willing to agree to protective orders and sought an adjournment to test her compliance with undertakings. The judge, however, accepted the local authority's, Children's Guardian's, and the girl's father's position that Defendant posed too great a risk. The court ordered the girl to live with her father and the boy to live with his maternal grandfather under a special guardianship order. The mother was granted significant contact with both children, but supervision of such contact was only endorsed in recital and not formally ordered. Defendant's contact with the boy was limited to fortnightly supervised contact by the grandfather, again only in recital without a formal supervision order.

The order was implemented immediately despite the mother's request for a stay. The boy has been living with his grandfather near the mother and Defendant, and the girl with her father and his partner approximately 10 miles away. The appeal challenges this order and the underlying risk assessment.

Legal Issues Presented

1. Whether the trial judge failed to make a proper and complete risk assessment regarding Defendant's potential harm to the children.
2. Whether the trial judge failed to make key findings of fact, particularly concerning the mother's compliance with undertakings to keep the children away from Defendant.
3. Whether there was procedural error in the judge relying on incorrect information not raised during the trial.

Arguments of the Parties

Appellant's Arguments

• The trial judge did not conduct a proper risk assessment, omitting critical analysis of protective measures and the real-world circumstances in which Defendant might harm the children.
• The judge failed to make clear findings on whether the mother complied with her undertaking to keep the children away from Defendant, which was essential to assessing risk.
• Procedural fairness was compromised by the judge relying on observations about seating arrangements outside court that were not raised during trial and not addressed with the parties.

Respondents' Arguments

• The judge had the advantage of assessing the mother in evidence and covered all necessary grounds in her judgment.
• The local authority did not seek a finding that the mother breached her undertaking and accepted the absence of such a finding in the judgment.
• The risk from Defendant was significant and justified the orders made, given his violent history and the mother's lack of insight into the risks.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the significant findings about Defendant's violent and abusive history from related proceedings involving his older children. The judge's decision to remove the children from their mother hinged critically on the risk Defendant posed. However, the appellate court found the trial judge's risk assessment incomplete and insufficiently reasoned, particularly regarding the mother's compliance with undertakings and the effectiveness of protective measures proposed by the local authority, the father, and the children's grandfather.

The court emphasized the necessity of a detailed, structured risk assessment, referencing established legal principles that require consideration of the type, likelihood, severity, and mitigation of harm. The judge failed to address whether the mother had complied with court undertakings, leaving a crucial factual issue unresolved, which undermined the risk evaluation.

The court also identified procedural shortcomings, notably the judge's reliance on observations about seating arrangements outside court that were not raised or contested during trial, thus breaching procedural fairness.

Given these deficiencies, the appellate court concluded that the case must be remitted for rehearing with a fresh risk assessment and fact-finding. Pending rehearing, the children's prior living arrangements with their mother were to be restored under interim supervision orders to protect them from Defendant, with clear undertakings to keep Defendant away except for supervised contact with the boy.

The court recognized the difficulty and sensitivity of the case and paid tribute to the trial judge's careful work under pressure but underscored the necessity of clarity and completeness in risk assessments in child welfare cases.

Holding and Implications

The appeal was allowed. The court set aside the order that removed the children from the mother and remitted the case for rehearing before a different judge.

The children were to be returned to the mother under an interim supervision order pending the rehearing. This decision directly affects the parties by restoring the status quo ante and mandates a fresh, thorough assessment of risk and fact-finding. No new precedent was established, but the judgment reinforces the critical importance of comprehensive risk analysis and procedural fairness in family law proceedings involving child welfare.