T (Children: Risk Assessment)

Factual and Procedural Background

This appeal concerns three brothers, referred to as A1, A2, and A3, who have been in foster care since October 2023. On 19 August 2024, Her Honour Judge Tyler made final care orders for all three children and a placement order specifically for A3. At that time, the children were aged 11, 9, and 16 months respectively. The parents appealed seeking the return of the children, but the appeal was resisted by the local authority and the Children’s Guardian.

The parents are from different West African countries and married in England. The mother has three older children, two raised by family in Africa, and a third child, D, who lived with them. In June 2015, A2, then an infant, suffered a serious head injury leading to care proceedings and foster placements for D, A1, and A2. A fact-finding hearing in January 2016 found the injury was caused by the mother, though not deliberately inflicted.

Following the hearing, the parents separated, and care orders were made for D, while supervision and child arrangements orders were made for A1 and A2, who returned to the father’s care with supervised contact with the mother. D remained in care for a decade and was reported to be struggling. Concerns about the father’s care of A1 and A2 arose in 2019, leading to child protection plans. The father took A1 and A2 to Africa for four years, where they lived with their maternal grandmother, with periodic visits from the parents.

Despite previous court information, the parents had not truly separated and concealed this from professionals. A3 was born in England in March 2023 and remained with the mother without concerns until September 2023, when A1 and A2 were returned to England and placed with the mother. Shortly thereafter, the local authority initiated proceedings, resulting in interim care orders and the children’s placement in foster care.

Since entering foster care, the children have experienced multiple placements, with A1 and A2 making allegations against carers and refusing school attendance. Family time with the parents was described as warm and emotionally positive. The parents engaged well with assessments and foster carers. The final hearing in July 2024 resulted in care plans for long-term foster care for A1 and A2 with weekly parental contact, and a plan for A3 involving a time-limited search for adoption with a fallback to foster care with siblings.

The parents applied for permission to appeal in September 2024, which was granted in November 2024. The appeal hearing involved submissions challenging the judge’s reasoning and the adequacy of risk and welfare assessments. The local authority and Children’s Guardian defended the original decision.

Legal Issues Presented

1. Whether the judge’s decision adequately identified and assessed the type and degree of risk to each child, including risk management considerations.
2. Whether the judge properly linked threshold findings to the welfare of the children, including consideration of the welfare checklists under the Children Act 1989 and the Adoption and Children Act 2002.
3. Whether the judge’s analysis appropriately compared competing placement options and assessed proportionality regarding interference with the children’s and parents’ rights.
4. Whether the care orders and placement order were justified on the evidence and legal principles.

Arguments of the Parties

Appellant's Arguments

• The judge failed to identify the specific type or degree of risk each child faced and did not consider how risks could be managed.
• There was no clear link made between threshold findings and the children’s welfare assessments.
• The welfare checklists under relevant statutes were not addressed, including the impact of separation on the children and the difficulty in finding an adoptive placement for A3.
• The judge’s analysis was linear and lacked a side-by-side comparison of alternatives, focusing unduly on parental capacity.
• The judge did not assess whether the orders were proportionate, resulting in an unjustified outcome.

Respondents' Arguments (Local Authority and Children’s Guardian)

• The risk identified was physical harm stemming from the historical injury to A2.
• There was also emotional harm due to the children’s chaotic history, parental dishonesty, and lack of cooperation with professionals, although no formal findings supported this.
• They acknowledged some structural difficulties in the judgment but maintained it contained adequate fact and legal analysis.
• The judge was entitled to accept the Guardian’s view that risks of physical harm and neglect were exceedingly high and that no effective safety plan could be devised.
• They accepted the children had been well-loved before removal and had encountered difficulties in foster care.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60	Guidance on structured risk assessment and welfare evaluation in child care proceedings.	Reiterated the need for careful risk assessment as part of the welfare checklist and emphasized the importance of structured reasoning in decisions affecting children.
Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2018] All ER (D) 94 (Dec)	Framework for proportionality and welfare considerations in placement order decisions.	Referenced for principles guiding risk assessment and proportionality in placement decisions, reinforcing the need for a balanced and structured approach.

Court's Reasoning and Analysis

The court emphasized the necessity of rigorous, structured reasoning in decisions involving the separation of children from their families, especially where adoption is considered or where outcomes are not obvious. It highlighted that risk assessment must realistically evaluate the type, likelihood, and consequences of harm, along with the potential for risk reduction or management, and be integrated within a comprehensive welfare assessment.

The court identified seven key questions that must be addressed in such cases, including the nature and likelihood of harm, consequences for the child, risk management, welfare considerations, comparative assessment of placement options, and proportionality regarding interference with rights.

Applying this framework, the court found that the judge’s decision lacked an effective risk assessment and welfare evaluation. Critical questions were neither asked nor answered, and the concluding judgment did not justify the significant care orders and placement order made. The reasoning was insufficiently structured, lacking a clear comparison of alternatives and a proportionality analysis.

The court noted that the injury to A2 in 2015 was serious but had no long-term health consequences, and that other welfare factors favored placement with the parents. It found the local authority’s case on emotional harm weak and without formal findings. The children’s experiences since 2015 and during their time in Africa showed no evidence of harm from parental care. The court questioned the assessment of risk to A1 and A2 given their ages and history, and noted the difficulties and harms the children faced in foster care, including separation and cultural mismatch.

Given these deficiencies, the court concluded that the care orders and placement order must be set aside and the interim care orders reinstated, with applications to be redetermined. It recognized the complexity of the case, especially regarding A3, and remitted the matter for rehearing to allow a proper welfare and risk assessment and to determine interim arrangements and case management issues.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the final care orders and placement order, and reinstated the interim care orders. The local authority’s applications for care orders and placement order are to be reheard and redetermined if pursued.

The direct effect is that the children remain in interim foster care pending the rehearing. The court emphasized the importance of a structured, thorough assessment process to ensure decisions are justified and proportionate. No new precedent was established beyond reinforcing the need for rigorous risk and welfare analysis in child care proceedings. The rehearing will address interim placements, contact arrangements, and potentially the appointment of a new Children’s Guardian.