Anonymised Summary of the Opinion

Factual and Procedural Background

This appeal concerned three young children (ages 8, 6 and 5) who had been placed with their paternal grandparents in July 2022 with parental agreement after the parents had caused the children significant harm through substance misuse, domestic violence and neglect. The children became settled and made marked progress while living with the grandparents for almost three years.

Public law proceedings began in December 2022 and continued well beyond the statutory 26-week limit. During the proceedings the local authority expressed concern about the risk of future sexual harm arising from the grandfather and from an uncle who had lived in the household until March 2025. The local authority relied on three historical sexual offence convictions of the grandfather (dating from 1975–1984) and on two matters admitted by the uncle (in 2007 and 2015). The court nevertheless also relied on a number of disputed and unproven allegations relating to the uncle (2006–2013) and on a small cluster of school reports about sexualised behaviour by the eldest child in 2023–2024.

After a multi-day final hearing which spanned seven days across March and June 2025 before a District Judge ("Judge Youdan") sitting as Recorder, the court made care orders for all three children on 5 June 2025 and authorised removal to long-term foster care. The family appealed. During the appeal process the local authority removed the children to foster placements before the expiry of the appeal period; subsequent placement disruption occurred and contact between the children and family was reduced.

On appeal, the lead appellate judge (referred to here as "Judge Jackson") concluded that the trial judge impermissibly relied on unproven allegations and on unresolved school reports when assessing risk, and that the welfare assessment was disproportionally overwhelmed by risk to the point that the care orders were not reasonably open on the evidence. The appeal was allowed: the care orders were discharged, a 12-month supervision order substituted, the interim child arrangements order restored, and the grandparents' application for a special guardianship order remitted to the Family Court. The appellate court also directed that the children should return to the grandparents as soon as possible and expressed concern about the local authority's conduct in executing the care plan after the care orders were made.

Legal Issues Presented

1. Whether the trial judge lawfully and properly assessed the risk of future sexual harm to the children by relying upon unproven, disputed allegations and limited school reports when making permanent care orders.
2. Whether the welfare balance was properly conducted and, in particular, whether the risk factor was given excessive weight so as to render the care orders unnecessary and disproportionate.
3. What orders should follow if the appellate court found the trial decision unsustainable (i.e., whether to remit for further hearing, substitute different orders, and the practical consequences for placement and contact).

Arguments of the Parties

Appellant (Grandparents) — Core submissions

• The welfare analysis at first instance was flawed and gave insufficient weight to the positive features of the family placement (attachment, stability, improvements, parental support and school continuity).
• Expert and social work material relied upon unproven and unidentified matters; the special guardianship assessment over-relied on allegations that had not been established.
• The care orders were unnecessary and disproportionate given the long period of stable care by the grandparents and the substantial, unchallenged positives of the placement.

Respondent (Local Authority) — Core submissions

• The local authority relied on proven facts: the grandfather's convictions and the uncle's admissions together with concerns about the grandmother's protective capacity; those provided a proper factual foundation for the risk assessment and the care plan.
• References to other complaints about the uncle and to the reports from the school were not objectionable background material; the trial judge was entitled to consider the totality of material when assessing risk.
• The family's cooperation had to be understood alongside what the local authority characterised as lack of insight into the risk.

Children's Guardian — Core submissions

• The Guardian supported the decision to remove because she was not reassured that the grandparents could keep the children "100% safe" and she considered the level of monitoring required to be unsustainable in the long term.
• In submissions, the Guardian relied on precedent (including an authority cited as Devon County Council v EB) to support the proposition that the court may look widely at the totality of facts even if some are unproved.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563	Explains the standard of proof in cases alleging past sexual harm and the requirement that facts relied on to establish future risk be proved to the requisite standard (or resolved if disputed) so that future risk conclusions are founded on facts.	The appellate court reiterated that conclusions about future risk must be based on proved facts and proper inferences; unproven allegations cannot form the factual basis for finding the s.31 threshold or a welfare justification for removal.
Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317	Confirms approach to likelihood of harm and consistency with the Re H framework (used for assessing risk under s.1(3) welfare checklist and s.31 threshold).	Used as part of the consolidated authorities to show that risk assessment requires a factual base and that the court must resolve disputed evidence as necessary before acting upon it.
Re O and N (Minors) (Care: Preliminary Hearing) [2003] UKHL 18	Authority approving approach that courts must assess facts properly when considering future risk.	Reinforced the appellate court's position that the welfare assessment must be anchored in facts proved or findings properly made.
Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35	Addresses standards of proof and approach to evidence in care proceedings.	Adopted as part of the established framework requiring factual foundations for welfare and threshold findings.
Re S-B (Children) [2009] UKSC 17	Summarises and re-states the principles in Re H about past harm and likelihood of future harm and the requisite standards.	Quoted to emphasise that a court must be satisfied that the facts relied on actually happened (on the balance of probabilities) when predicting future harm; the appellate court applied this to criticise reliance on unproven matters.
Re A (Fact-Finding: Disputed Findings) [2011] EWCA (Civ) 12	States that a court may refer to evidence it has not made findings about, but cannot rely upon such evidence as the basis for assessing risk.	The appellate court relied on this to hold that the trial judge erred by using disputed/unproven evidence as a foundational basis for her risk assessment.
Devon County Council v EB [2013] EWHC 968 (Fam)	Explains that courts may look widely at the totality of material but cannot base conclusions of risk on unproven facts.	The opinion accepted the authority for the proposition that material may be surveyed widely, but used it to confirm the constraint that unproven allegations cannot form the basis of risk findings; the appellate court rejected the Guardian's reliance on this authority as justifying acting on unproven allegations.
R (on the application of Pearce) v Parole Board for England and Wales [2023] UKSC 13	Interprets a different statutory context about evidence and risk; cited by some to suggest courts may take background factors into account when assessing risk.	The appellate judge held that Pearce concerned a different statute and context and could not be used to justify the Family Court relying on unproven allegations in a care risk assessment; the judge rejected reliance on Pearce for that purpose.
Re G (A Child: Scope of Fact-Finding) [2025] EWCA (Civ) 1044	Recent analysis (Baker LJ) of the principles governing judicial risk assessment and the requirement that conclusions be founded on facts; cited for summary of principles.	The appellate judge relied on the analysis in Re G to summarise and restate governing principles: that courts must base risk assessments on proved facts and proper inferences, not on unresolved doubts or suspicions.

Court's Reasoning and Analysis

The appellate judgment set out two connected strands of analysis: (1) reaffirmation of the legal principles governing risk assessment in children cases and the evidential standards required; and (2) application of those principles to the facts and findings (and non-findings) in this case.

1. Legal principles governing risk assessment

• The court reiterated established authorities (Re H, Re S-B, Re A, Re G and related cases) holding that a court must base conclusions about past or future harm on facts that are proved to the relevant standard or on disputed facts that have been resolved as necessary. Unresolved doubts and suspicions are not a proper factual basis for reaching a conclusion that a child is likely to suffer harm in the future.
• The appellate judge emphasised the distinction between: (a) referring to unproven material in the narrative of a judgment to make sense of events, and (b) relying on such unproven material as the factual foundation for a risk assessment. The latter is impermissible and increases the risk of error and injustice.
• The court rejected the suggestion (advanced by some on appeal) that decisions in other statutory contexts (e.g., Pearce) permit the Family Court to rely on unproven allegations when assessing risk under the Children Act 1989. The appellate judge held that the Family Court must adhere to the established standards for care proceedings.

2. Application to the case

• The appellate judge accepted that the trial court could properly have treated the grandfather's historical convictions and the matters the uncle admitted as factual starting points for concern. Those proved or admitted matters could sensibly give rise to a real possibility of future harm that could not be ignored.
• However, the trial judge was required to treat the grandfather's convictions (dating from decades earlier) and the uncle's admitted matters with appropriate scrutiny and to explain how they, as proved facts, justified permanent removal rather than a less intrusive order.
• The appellate judge found that the trial judge materially relied on a wider array of disputed and unproven allegations about the uncle (2006–2013), and on unproven school incident reports about the eldest child, without making the necessary findings of fact. The trial judge adopted phrases such as "three generations" and "patterns of repeated behaviour" despite no proven linking facts and without explaining the causal or temporal connection required to justify that characterization.
• The appellate judge concluded that reliance on such unproven and untested material was impermissible and that the trial welfare analysis was therefore legally flawed: risk was given disproportionate weight, so that the care orders were not reasonably open on the evidence before the judge.
• Procedural unfairness was also identified in respect of the uncle: the court had stood him down and his statement was not challenged; it was procedurally unfair for the local authority and the court to rely on the disputed allegations in those circumstances.
• The appellate judge also analysed the balance of welfare factors. He set out the strong, undisputed positives — sustained attachment, clear improvements, good school attendance, parental support and long-term stability in the grandparents' care. Against these certain losses and disruption posed by removal were contrasted with possible (but not proved) future sexual harm. The judge found the trial judge had given excessive weight to the speculative risk and had thereby privileged one welfare factor to the exclusion of the overall balance required by the s.1(3) checklist.
• The appellate judgment criticised the local authority's practical conduct after the care orders were made (including moving the children during an anticipated appeal, hurried introductions to foster placements and reduction in contact) as illustrative of uncertainties in long-term public care and as conduct the appellate court found troubling — although it did not treat that conduct as determinative of the legal merits of the appeal.

Holding and Implications

Holding: The appellate court allowed the appeal and concluded that the care orders made on 5 June 2025 were not reasonably open on the evidence. The court set aside the care orders and substituted a 12-month supervision order. The interim child arrangements order that had been in force since December 2022 was restored pending resolution of private law arrangements. The grandparents' application for a special guardianship order was remitted to the Family Court.

Direct consequences for the parties:

• The care orders made on 5 June 2025 were discharged.
• A supervision order for 12 months was substituted as a proportionate measure to enable the local authority to monitor the children's progress and respond to any difficulties; the order can be extended if necessary.
• The interim child arrangements order (established December 2022) was to be restored and operate while private law resolution of the special guardianship application is pursued in the Family Court.
• The appellate court directed that the children should be returned to the grandparents as soon as possible and that contact and support arrangements (including a weekly allowance historically provided by the local authority) should resume unless the parties say otherwise.

Wider implications highlighted by the court:

• The judgment reaffirms that family courts must base risk findings on facts that are proved or on disputed facts that have been properly resolved where necessary — unresolved doubts and suspicions cannot be the factual foundation for removal orders.
• The case emphasises the need for courts to weigh risk against other welfare factors without privileging the elimination of all risk over the children's established attachments, stability and other welfare needs. Risk cannot be managed by the court at any price where the statutory welfare balancing process points away from removal.
• The court expressed concern about the practical consequences of removing children into public care, including placement instability and the reality that foster care does not guarantee freedom from harm; the practical conduct of local authorities in implementing care plans (particularly while appeals are in play) may warrant scrutiny in its own right.
• The appellate ruling substituted a less intrusive order (supervision) where the statutory balance did not support permanent removal — an outcome that illustrates the availability of proportionate alternatives to care orders where the factual basis for permanent removal is insufficient.

No new legal principle was created: the court applied and reaffirmed existing authorities about evidential standards and welfare balancing in children cases, and corrected the trial judge's application of those standards on the facts of this case.

Order and Practical Notes

• The appellate decision discharged the Care Orders made on 5 June 2025 and substituted a Supervision Order for 12 months.
• The interim child arrangements order from December 2022 was restored; the grandparents' Special Guardianship application was remitted to the Family Court for determination.
• The appellate court directed that the children should return to the grandparents as soon as practicable and noted the expectation that the weekly financial support (previously £144 per week) should resume unless the parties advise otherwise.

Administrative and Conduct Observations by the Court

The appellate judges (referred to here as "Judge Coulson" and "Judge Laing") agreed with the lead judgment's concerns about the local authority's conduct following the making of the care orders — including hasty moves between foster placements, inadequate introductions, and reduced contact despite the grant of permission to appeal. The appellate panel observed that such conduct was troubling and underscored the practical uncertainties of long-term care placements.

This summary is strictly based on the material contained in the provided opinion. No information has been added beyond what is present in that text. All personal names and identifying details have been anonymised or paraphrased into functional role descriptors for consistency with the anonymisation requirement.