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T (Children: Risk Assessment) [2025] EWCA Civ 93, 7.2.25. Court of Appeal indicating how risk assessment should be carried out and making strong additional comments

Background chronology concerning the 3 children who in August 2024 were aged 11 [C1] , 9 [C2]  and 1 [C3]: 

  • 2016 Fact find hearing, CAO to F with SO 
  • August 2019 F took C1 & C2 to Africa. leaving them there in the care of their grandmother 
  • March 2023 C3 was born. 
  • September 23 F brought C1 & C2 back to England 
  • October 2023 the LA became aware of the children, and foster placement ICO’s made  
  • 22-26th July 24 final hearing. 
  • 19th August 2024, judgement, HHJ Tyler made foster CO’s  for eldest two and placement order for youngest 
  • 27 September 2024 unrepresented parents appealed, seeking return of all children to them, opposed by LA and CG 
  • 27 November 2024 Appeal application granted 

July hearing:  Evidence was given by an independent social worker ('ISW'), the children's social worker, the parents and the Guardian.  Evidence was given by an independent social worker ('ISW'), the children's social worker, the parents and the Guardian. 

The reason for an ISW report was because the Guardian recommended a 'Resolutions-based' assessment, which may be commissioned where there is a lack of parental acceptance of previous findings. 

Appeal hearing: Parents Counsel argued that there were a number of fatal problems with trial judges reasoning, in that she did not: 

  • identify the type or degree of risk to which each child would be exposed, 
  • consider questions of risk management.  
  • make a link between the threshold findings and the children's welfare.  
  • address the welfare checklists under the Children Act 1989 or, in C3's case, the Adoption and Children Act 2002. 

Peter Jackson LJ said: 

‘The separation of a child from a family can only be approved after a process of rigorous reasoning. That is essential where there is a plan for adoption, but it is also necessary for any significant decision where the outcome is not obvious.  A structured process is of real benefit for these important and often difficult decisions, as without it there is a greater chance of error, leading to children living unsafely at home or being kept unnecessarily in care. The fact that the underlying principles are well-known to specialist judges does not relieve the court of its duty to the child, to the family and to society, to explain and justify its decision.’ 

He continued ‘This court's recent decision in Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60, reiterates the guidance given in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2018] All ER (D) 94 (Dec). The risk of harm, important as it is, is one of a number of factors in the welfare checklist and it has to be carefully assessed, particularly where it may be decisive.’ 

He recited S 31(9) CA 19791 and listed the questions the court has to address: 

  • What type of harm has arisen and might arise? 
  • How likely is it to arise? 
  • What would be the consequences for the child if it did? 
  • To what extent might the risks be reduced or managed? 
  • What other welfare considerations have to be taken into account? 
  • In consequence, which of the realistic plans best promotes the child's welfare? 
  • If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate? 

He then went on to say:- 

‘A structured analysis of this kind, adapted to the facts of the individual case, is of benefit to those who make decisions and to those who are affected by them. The analysis need not be lengthy, but it ensures that undue weight is not given to one factor, however notable, and that other important factors are not overlooked. It must be remembered that risk assessment is about the realistic assessment of risk, not about the elimination of all risks. Likewise, the assessment of actual or likely harm is not the same thing as an all-round welfare assessment.’ 

‘There was no effective risk assessment, and consequently no proper welfare evaluation, comparison of the options, or consideration of proportionality.  The care orders and placement order must therefore be set aside and the interim care orders will revive.’ 

The case was remitted for a rehearing, however Peter Jackson LJ went on to add comments which he said he would not normally do2, at end of which he said ‘ I have referred to these matters because, if this appeal had concerned C1 and C2 only, I would probably have favoured an outcome that led to their return to their parents' care without the need for a rehearing.’  (The position of child C was less clear). 

Peter Jackson said initially there will be a substantial interim hearing at the end of this month, at which the court will determine a range of issues including: each child's interim placement; the frequency of contact; and case management orders, including streamlining further evidence, and consideration of whether there should be a change of Children's Guardian. 

Moylan & Males LLJs agreed.