News

Risk assessments and consideration of risk management taking into account the Welfare Checklist - Re T (Children: Risk Assessment) [2025] EWCA Civ 93 (07 February 2025)

On 7 February 2025 the Court of Appeal handed down the Judgment of  Re T (Children: Risk Assessment) [2025] EWCA Civ 93 (07 February 2025). This case relates to an appeal following public law care proceedings in respect of three brothers, A1, A2 and A3. They have been together in foster care since October 2023. On 19 August 2024, Her Honour Judge Tyler made final care orders for all three and a placement order in respect of A3. They were then aged 11, 9 and 16 months respectively. This case helpfully highlights the importance of thorough risk assessment within public law proceedings and the need to consider the risks from threshold findings in the context of the Welfare Checklist.

The full Judgment can be found at

https://bailii.org/ew/cases/EWCA/Civ/2025/93.html…

 

Background

 

The parents, who are from different West African countries and are now in their 40s, met and married in England. The mother has three older children. The older two were brought up by family in Africa and are now adults. Her third child, D, lived with the parents, and in due course A1 and A2 were born. The father worked and the mother looked after the children. There were no known concerns. In June 2015, when A2 was aged 15 weeks, the mother took him to the GP with swelling to his head. On investigation, he was found to have a linear skull fracture with overlying haematoma. Care proceedings were issued by the local authority in whose area the family then lived and D, A1 and A2 were placed in foster care. The parents stated that the mother was the only adult at home when the injuries to A2 occurred. She denied having caused them and suggested that D, then 4½, may have caused them accidentally. 

At a fact-finding hearing in January 2016, a District Judge found that the injury was caused by the mother. There was no finding that it was deliberately inflicted, as opposed to accidental, and no other matters were relied upon to satisfy the threshold. After the fact-finding hearing, the parents stated that they had separated. On 29 September 2016, the court made a care order in relation to D, who was then aged 5. As to A1 and A2, the court made a supervision order and a child arrangements order in favour of the father. They returned to his care, aged 3½ and 1½. They were to have monthly contact with the mother, supervised by the local authority.

In March 2022, the mother applied unsuccessfully to discharge the care order.

Returning to A1 and A2, the supervision order expired in 2017, and there was no further local authority involvement until 2019. At that point, a child protection conference was convened due to concerns at the school that the father was not meeting the boys' needs and was not co-operating with professionals. The children became the subject of child protection plans. During the summer holidays in August 2019, the father took A1 and A2 (then aged 6 and 4) to Africa. He left them in the care of their maternal grandmother and returned to the UK a month later. A1 and A2 remained in Africa for four years, and each parent visited them several times for periods of a month or more. 

Despite what the court had been told in 2016, the parents had not truly separated. Their marriage continued, though they stated that they lived separately. They concealed the position from professionals, and from the present local authority after they moved into its area. 

In March 2023, in England, A3 was born. The mother co-operated fully with medical appointments before his birth, and while he remained in her care there were no concerns of any kind. She did not tell professionals about the past proceedings. In September 2023, the father brought A1 and A2 back to England and placed them with the mother. She and the three children then lived together for five weeks. The older children were placed in school and registered with health services. In October 2023, a health visitor became aware of the history from the records, and made a referral to the local authority. Social workers visited the mother's home and found the children to be well-presented, and the home to be clean, tidy, and comfortable. However, the local authority took proceedings within days and interim care orders were made. The three children were placed in foster care.

Since then, the children have been in three different foster placements. A1 and A2 have made allegations against their carers in each placement and have refused to attend school throughout their time in foster care. By the time of the final hearing they had lived for several months with a family of Asian origin that shared the family's faith.

Family time, which took place several times a week before the hearing was described by the Guardian as being of excellent quality, and by the social worker as containing wonderful expressions of emotional warmth. The children were often distressed to leave their parents at the end. The parents engaged well with the assessments and appointments associated with the proceedings, and they worked well with the foster carers.

Final Hearing

 

The final hearing took place between 22 and 26 July 2024. Evidence was given by an independent social worker ('ISW'), the children's social worker, the parents and the Guardian. Delivering her judgment on 19 August 2024, the judge approved a care plan for A1 and A2 of long-term foster care, with weekly parental contact (the local authority had proposed monthly). The plan for A3 was a six-month time-limited search for an adoptive placement, with a fallback plan for foster care in the same placement as his brothers.

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. The parents, who had also engaged in parenting courses, committed themselves to the assessment, attended every session and engaged in discussions with the ISW. The judge described the resulting assessment as thorough and detailed. She recorded that the ISW had concluded that it was not an appropriate case for the Resolutions model to be used. The ISW's conclusion was that the risk factors applied to all three of the children because the parents lacked insight into the local authority's anxieties, and lacked insight into their own actions and risks arising from not following safety plans. There was therefore an inability to meet the children's emotional needs and, particularly in the case of A3, a risk of physical harm. Until the parents were able to develop more insight, they would not be in a position to have the children safely returned to their care, even with a safety plan in place, because the ISW was not satisfied that they would adhere to it, and because in her view it would need to be professionally supervised 24 hours a day, seven days a week. 

The social worker aligned himself with these views. He described the children as being in a great state of confusion and despair. There was an excessive amount of evidence that A1 and A2 were suffering emotional harm, but this was in his view caused by the parents' behaviour and not by the system. He accepted that the parents can to a large extent meet the boys' emotional and developmental needs. However, the older boys' loyalty to their parents and lack of trust in professionals meant that they were unlikely to reveal any problems arising at home. The social worker thought there was a realistic chance of them settling once they knew they were not going home. He accepted that the local authority would struggle to obtain an appropriate adoptive placement for A3. The judge expressed the hope that the children would indeed settle, observing that the case was a difficult one because "one is looking, or attempting to look, into a crystal ball to look at risks and the balance of harm."

 

Within the oral Judgment the Judge stated: "  I have very carefully considered the alternative of a return to the care of [the parents] for all three of these children and, whilst I have set out the many positives that there are for them, I am satisfied that on the analysis by not only the independent social worker and the allocated social worker, but also the children's guardian of the issues relating to the risk involved in a return to the care of the parents, that the balance of harm falls down on the side of none of the children returning to their care. It is a very sad case and I have been very troubled by it because there are so many positives with the parents' situation and their abilities, but I have had to do what I believe to be in the welfare interests of the children. I have three separate, experienced social workers (including the children's guardian) whose evidence, it seemed to me, was cogent and persuasive in terms of the decision which I am making today."

The Appeal

On 27 September 2024, the mother and father, unrepresented and acting separately, applied for permission to appeal and the application was granted on 27th November 2024. The basis for allowing the appeal was as follows:

  1. The Judge did not identify the type or degree of risk to which each child would be exposed, or consider questions of risk management.
  2. The Judge did not make a link between the threshold findings and the children's welfare.
  3. The Judge did not address the welfare checklists under the Children Act 1989 or, in A3's case, the Adoption and Children Act 2002.
  4. Consequently, the Judge took no account of important matters such as: the father's ability to manage and mitigate any risk; the impact on the children of separation from their parents and, if A3 were adopted, from each other; the difficulty in finding an adoptive placement for A3; the practicality of the children returning home later if they did not do so now.
  5. There was no side-by-side comparison of the competing alternatives; instead, the analysis was linear, beginning and ending with an evaluation of what the parents could or could not offer.
  6. There was no final assessment of whether the orders were proportionate. All of these shortcomings had a snowball effect, leading to an outcome that cannot be justified.

The Appeal Judge further highlighted that the 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.  

 

The Children Act 1989 provides a framework within which the court assesses whether a child has suffered or is likely to suffer 'significant harm' for the purposes of the threshold for intervention, and 'harm' for the purposes of the welfare assessment. Section 31(9) defines harm in this way:

"harm" means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

Accordingly, the court had to address these questions in relation to each of these children:

(1) What type of harm has arisen and might arise?

(2) How likely is it to arise?

(3) What would be the consequences for the child if it did?

(4) To what extent might the risks be reduced or managed?

(5) What other welfare considerations have to be taken into account?

(6) In consequence, which of the realistic plans best promotes the child's welfare?

(7) If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate? 

The Appeal Judge went on further to state "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."

Key points

As stated at the outset, this case highlights the importance of the Court when making any final decision for children to undertake a risk assessment and identify the type or degree of risk to which each child would be exposed, or consider questions of risk management. The Judge must then make a link between the threshold findings and the children's welfare and address the welfare checklists under the Children Act 1989 or, in if appropriate the Adoption and Children Act 2002.