H (Care Proceedings: Risk Assessment), Re [2025] EWCA Civ 727

[2025] EWCA Civ 727

Case No CA-2025-000740

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT AT NORTHAMPTON

HH Judge Wicks

NN23C50072

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17 June 2025

Before

LORD JUSTICE BAKER

LORD JUSTICE HOLGATE

MR JUSTICE COBB

H (CARE PROCEEDINGS: RISK ASSESSMENT)

Hearing Hearing date : 22 May 2025

Joanne Brown KC and Sabrina Polak (instructed by Local Authority Solicitor) for the Appellant

Louise MacLynn KC and Carolyn Jones (instructed by Borneo Martell Coulston LLP) for the First Respondent

Lucy Reed KC (acting pro bono) and Nicola McIntosh (instructed by Wilson Browne) for the Second Respondent

Darren Howe KC and Paul Froud (instructed by Jackson West) for the Third Respondent, by her children’s guardian

Approved Judgment

This judgment was handed down remotely at 10.30am on 17 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]This appeal is brought by a local authority against the refusal by a judge to make a care order in respect of a girl, H, now aged rising 2.

[2]H is the mother’s fifth child. In the course of proceedings between 2014 and 2015, her four older children were all made subject to care and placement orders and subsequently adopted. The principal reason for their removal was the mother’s repeated failure to protect the children from exposure to emotional harm arising from her relationships with abusive partners.

[3]Between 2020 and 2021, the mother was involved in a relationship with another man, E, described by the local authority as dangerous. In 2022, the mother started a relationship with the father and became pregnant again. That relationship was also characterised by domestic abuse. In April 2023, when she was about six months pregnant, she was assaulted by the father after meeting E following his release from prison. A few days later, the father assaulted the mother again in her home. A child and family assessment completed in respect of the unborn child found that the mother “shows little insight into domestic abuse despite completing the Freedom Project”.

[4]In July 2023, the mother gave birth to H. On the following day, the local authority filed an application for a care order. On discharge from hospital, H was placed in foster care under an interim care order. At a case management hearing, the court approved a residential assessment of mother and baby. Later that month, the mother was assaulted again by the father, as a result of which she was treated in hospital.

[5]On 31 July 2023, the mother and H moved into the residential unit. The initial report from the unit was positive, although in an addendum report concern was expressed about the mother’s capacity to remain separated from the father. Despite these concerns, the local authority filed a final care plan in November 2023 for H to remain in her mother’s care under a supervision order. Under the interim care order, the mother and H moved into a mother and baby foster placement prior to a planned move into the community.

[6]In December 2023, the mother and H left the mother and baby foster placement and moved to what was intended to be a confidential address. But later that month, according to the chronology filed in these proceedings (but not mentioned by the judge in his judgment), the father met the mother on two occasions at a hotel, and on a separate occasion, unknown to the local authority, he visited her at her home.

[7]At a hearing on 18 December 2023, it was agreed that there should be a further three-month assessment of the mother and H in the community, leading to an issues resolution hearing (“IRH”). Shortly after Christmas 2023, however, the father broke into the mother’s home, assaulted her again and threatened to kill her. The mother and H moved together to a foster placement, but a few days later the mother left, leaving the baby with the foster carers. A few days later, at the start of January 2024, H was placed with her current foster carers, Mr and Mrs N, a course which was approved by the court at a hearing on 15 January 2024.

[8]On 21 February 2024, the local authority filed an application for a placement order. At the next hearing in March 2024, originally intended as an IRH, the father stated that he wanted to be assessed as a carer. The proceedings were adjourned again and directions given for the filing of a parenting assessment of the father with the IRH relisted in August 2024. The order made following the hearing in March included a recital to the effect that the mother had declined to support a prosecution of the father relating to the December incident. In the event, the father did not pursue that application and instead supported the mother’s position that H should be returned to her care.

[9]Prior to the adjourned IRH in August, the local authority filed a document setting out the findings it was seeking on which it contended that the threshold for making a care or supervision order under s.31 of the Children Act 1989 was satisfied, in the following terms:

“(1) The child has suffered and is likely to suffer significant emotional harm, as well as suffered or is likely to suffer significant physical harm, as a result of the father having physically abused the mother, including while the child was in the home, there being no evidence that this behaviour would not continue in the future and so is likely to cause significant emotional and/or physical harm to the child. These incidents include (a) the father assaulting the mother in July 2023 to which he has plead guilty to ABH against her, (b) on 26 December 2023 the father committed criminal damage and assault by beating of the mother while the child was in the home. (2) The child has suffered significant emotional harm and was at risk of suffering physical and emotional harm, as a result of the parents’ inability to remain apart from each other despite being in a domestically abusive relationship which includes physical violence …. (3) The child was at risk of sufferings significant emotional harm and/or significant physical harm, as a result of the mother not taking protective actions to prevent the child from being exposed to her abusive ex/partners …. (4) The child is likely to suffer significant emotional harm and/or physical harm as a result of the mother’s continuing to come into contact herself and cause the child to come into contact with father …”

The threshold document was agreed by the mother.

[10]Also prior to the adjourned IRH in August, the local authority filed a final care plan for adoption. The children’s guardian filed a final analysis supporting the local authority’s applications for care and placement orders, but indicated that she supported direct contact with the mother post adoption. The parents opposed the orders, and at the IRH the court listed the case for a final hearing in October before HH Judge Wicks, with case management directions.

[11]At the hearing in October, the judge heard evidence from the allocated social worker, the mother and the guardian. The court was informed that Mr and Mrs N had expressed a wish to be considered as long-term carers for H. The judge adjourned the hearing, directing the local authority to file an updated care plan and a statement from Mr and Mrs N setting out their position and in particular whether they would consider applying for a special guardianship order. Whilst I understand the reasons for the adjournment, I am concerned that the hearing was not listed to resume until March 2025, over four months later. By that stage, the proceedings had been continuing for over 18 months – far too long, given the statutory obligations to conclude such proceedings within 26 weeks and the wider principle, recognised in s.1(2) of the Children Act 1989, that any delay in determining any question regarding the upbringing of a child is likely to prejudice the child’s welfare.

[12]In a position statement filed on 20 January 2025, Mr and Ms N stated that they were committed to caring for H throughout her childhood, that they did not consider that long-term fostering was the appropriate outcome for her, and that, while they did not rule out the possibility of adoption, they considered special guardianship to be the more proportionate and reasonable order.

[13]On 20 February 2025, the father was sentenced to 30 months in prison having been convicted of offences of violence against the mother after a criminal trial in which she gave evidence for the prosecution.

[14]On the same date, the local authority filed a further statement from the allocated social worker in which she confirmed the local authority’s position that, despite some positive steps taken by the mother, they considered that H would continue to be at risk of suffering emotional harm through being exposed to domestic abuse if returned to her care and that therefore they continued to seek care and placement orders, with a view to H being adopted by Mr and Mrs N.

[15]When the final hearing resumed on 5 March 2025, Mr and Mrs N attended, initially without legal representation, and informed the court that, having taken legal advice, their primary position now was that they wanted to adopt H but were willing to consider special guardianship, subject to conditions that would limit the extent to which the mother was able to exercise parental responsibility. The local authority indicated that, whilst they continued to seek a care plan on the basis of adoption, they no longer sought a placement order within the present proceedings. They filed an amended care plan (dated 5 March 2025) which stated:

“1.3 …[The local authority] acknowledges the technicalities of the threshold of ‘nothing else will do’ in respect of H’s current foster carers wanting to care for H long term, with a strong preference for this to be under the legal auspice of adoption. Therefore, [the local authority] will complete the appropriate adoption assessment should the Court make the final care order, which will take 4-6 months, and would make any requisite application for a placement order thereafter. 1.4 The proposed plan is for H to remain in her current foster family whilst an adoption assessment is completed. 1.5 It is acknowledged that H’s current carers have expressed a wish to pursue a private adoption application. In the event that this application is made [the local authority] will undertake the required assessments to support that process and to support the application generally. 1.6 The local authority will continue to assess whether rehabilitation to her mother’s care is in her best interest for the duration of the care order.”

[16]The hearing was adjourned to the following day to allow the parties to reflect on the local authority’s change of position. At that hearing, Mr and Mrs N, now represented by counsel funded by the local authority, initially applied to be joined as parties to the proceedings, but after legal argument in which attention was drawn to the decision of this Court in Re R (Care Proceedings: Joinder of Foster Carers)

[2021] EWCA Civ 875

, that application was not pursued. Mr and Mrs N indicated, however, that they would be applying for an adoption order, and had given the local authority notice of such application as required by s.44(2) and (3) of the Adoption and Children Act 2002.

[17]No further evidence had been filed on behalf of the mother, but her counsel informed the court that during the period of the adjournment her client had made significant positive changes in her life. The judge directed the parties to draft a schedule of agreed facts to be filed with closing written submissions, which would be considered at a further hearing on 19 March with judgment to be delivered the following day.

[18]A schedule headed “Agreed Facts” was duly prepared in the following terms:

“Since part 1 of the final hearing in October 2024 the mother has continued to make positive progress as follows; (a) She has continued to remain separate from the father and not had any contact with him. (b) She gave oral evidence at the criminal trial for the prosecution of the father …. As a result of this conviction, he was sentenced on 20 February 2025 to 30 months in custody. (c) She has continued to attend contact with H consistently…and the quality of this contact remains high. There is a lovely bond between H and the mother. (d) The mother continues to have weekly contact with [a named centre] who provide specialist support for victims of domestic abuse …. (e) The mother provided information to the police (such as possible addresses for the father) to assist in finding him and bringing him to justice. (f) The mother self referred to [the local] domestic abuse service… and began the Stay Free programme, this is due to complete in April. (g) The mother has put in a housing application …and viewed two properties …. (h). The mother is on the waiting list for … trauma therapy (i) The mother’s mental health continues to be stable and is in contact with the mental health team every two weeks. (j) There has been no police involvement. (k) The mother has been able to re-establish family relationships and friendships, and has a good support network which includes step mum, her sister, and maternal uncle and his partner, her friend and maternal aunt, (l) The mother continues to maintain a clean and well equipped home.”

[19]Prior to the resumed final hearing on 19 March, the local authority filed a further statement from the allocated social worker. Her statement included the following passage:

“In the interim period between pt. I and pt. II of the Final Hearing, [the mother] has engaged with [the local domestic abuse service], partaking in the “Stay Free” programme in respect of domestic abuse. [She] has shared that she has found this course very helpful, and more meaningful that completing the Freedom Program which she had completed at least 3 times previously. In discussions with [the mother], despite referring to the programme of work positively and explaining that she feels like she would now make better decisions, I remain extremely concerned that [she] does not take any responsibility for her decision making. She remains adamant that all of the events, and the reasons H is not in her care is due to the actions of [the father]. In some regard, this is correct, however, [the mother] must accept and acknowledge that it is her decision making that allowed [the father] to cause this disruption. [The mother] had everything she needed in December 2023 to remain separated from [the father] – a support network, a new property out of area, the support of services. Unfortunately, she made the decision to resume her relationship with [him] then she and he returned home to their own home. Until [she] is able to take responsibility for her actions, she will not effect second-order change in how she chooses romantic partners, and this will remain a risk to H as she will be exposed to further domestic abuse, should she return to her mother’s care. [The mother’s] IDVA has shared that [she] has engaged well with the program of work and feels like she has made some progress, but is not able to say confidently that she feels [she] would be able to maintain these changes long term.”

Later in the statement, under the heading “Analysis of parenting capacity”, the social worker said:

“[The mother] continues to engage in unhealthy and unsafe relationships with multiple reports from professionals and concerned family members up until the end of 2024. I am extremely concerned about [her] lifestyle choices.”

[20]Apart from the social worker’s statement, no further written evidence was filed. No oral evidence was called and the hearing proceeded on submissions only. The local authority no longer sought a placement order, but instead invited the court to make a care order “with a view, subject to assessment, to her remaining in the care of her foster carers in the long-term pursuant to adoption, with either a placement order application and/or a private adoption application being made in due course”. The guardian supported the local authority’s position, and confirmed her view that H’s current placement was the best option. The mother sought H’s return to her care, and her position was supported by the father. After hearing submissions, the judge reserved judgment until the next day.

[21]The judge started his judgment by summarising the factual background, in the course of which he referred to the “extensive history of local authority involvement arising from the mother entering into abusive relationships with men, including the father of the four older children” and to the events which had occurred in the currency of the present proceedings. He identified the legal principles by reference to paragraph 40 of the judgment in Re ADA (Children: Care and Placement Orders)

[2023] EWCA Civ 743

in which Peter Jackson LJ recited passages from his earlier judgments in Re D (A Child: Placement Order)

[2022] EWCA Civ 896

, Re K (Children) (Placement Orders)

[2020] EWCA Civ 1503

, Re F (A Child: Placement

[22]At that point (paragraph 27 of his judgment),

the judge said:

“I do not propose to summarise the evidence that I have read and heard in this case. I have kept it all in mind when reaching my decision.”

[23]He identified the option for H’s future as a return to the mother’s care, long-term foster care, or adoption. He continued:

“29. The mother clearly loves H and there is a strong emotional bond between them. The mother has consistently attended contact, which is of very good quality. Latterly, H has become upset at the end of contact, which is a further indication of the developing bond between mother and daughter. For a large part of these proceedings, the local authority’s plan had been one of reunification. There was a positive parenting assessment from the residential unit. In fact there is no doubt about the mother’s ability to offer a good level of parenting. Her physical care of H is good and she has maintained a clean and well-equipped home. 30. The risks in this case relate to domestic abuse. First, there is a risk that the mother will resume a relationship with the father or, at the very least, be unable to say no to him. Secondly, there is a risk the mother will enter into another abusive relationship. The potential harm to H, emotionally and physically, should either of those risks materialise is obvious. What can be put in place to mitigate those risks? 31. The local [authority] says that the mother would have to show that she had been able to remain separated from the father for a period of at least 6 months following his release from prison and that she had not entered into an abusive relationship of any kind for a period of 18 months. 32. There is a certain arbitrariness to those figures. What, in my view, the mother does need to do is to develop the resilience and insight to ensure that she remains independent from the father and that she is able to protect herself and H from him and from any other individual with whom she forms a relationship who is abusive. I accept that it is not always possible to predict whether an individual will be abusive, but there are some enquiries that the mother could make about the history of any individual before entering into a relationship with him.”

[24]The judge then referred to the schedule of agreed facts summarised above, describing them as indicating “a developing resilience and insight”. He stated that “the mother recognises that she has made poor choices and decisions in the past which have exposed her and H to harm”. He observed that “given the level of risk posed by the father, the mother will, inevitably, require professional help or know how to get such help, whether from the police or other agencies”. He recorded that she was willing for injunctions to be imposed, but added that whether that “would act as any deterrent to the father is questionable”.

[25]Turning to the option of long-term foster care, the judge cited the observations of Pauffley J at paragraph 39 of her judgment in Re LRP (Care Proceedings: Placement Order)

[2013] EWHC 3974

that it was “an extraordinarily precarious legal framework for any child” which did not provide legal security or imbue the child with “the same enduring sense of belonging within a family as does a child who has been adopted”.

The judge in the present case continued (paragraph 37):

“That nonetheless is the guardian’s recommendation in this case. Whilst I have great respect for the guardian, who is very experienced, I do struggle to understand the basis of her recommendation. She envisages that under a care order there will be further assessment of the mother. These assessments are ones which she says can and should take place outside proceedings.”

He said that the guardian “does not appear to have grappled with the key issue, which is the management of the risks I identified above”. He acknowledged that the guardian had addressed the issue in her original report but had not fully considered the “further positive changes since then, as evidenced by the agreed facts”. He added (paragraph 39):

“However, [the guardian] does say that the court should not, at this stage, consider whether adoption is the right option for H. So, to that extent, she departs from the local authority’s position.”

[26]Having rejected long-term fostering, the judge then turned to the option of adoption, noting that it would provide H with a high degree of parenting, stability and security. On the other hand, the loss of her bond with her mother would “have a profound effect on H, not only throughout her childhood but throughout her life”.

The judge then set out his conclusions in the following paragraphs:

“43. This has been a difficult and unusual case. However, when I weigh the positives and negatives of each option for H against each other, I am not driven to the conclusion that nothing short of adoption will do in this case. In fact the conclusion I reach is that H can and should be returned to the mother’s care. I am satisfied, for the reasons I give above, that the mother has continued to make changes, has continued to develop the necessary resilience and insight, and that this will enable her to protect both herself and H from the risks, both from the father and from any other individual with whom the mother forms a relationship in the future who turns out to be abusive. 44. The mother will need continued support from the local authority, probably at an intensive level, when the father is released, but she has engaged with appropriate support services, she is developing her knowledge and insight, and she now has family around her to support and help her in times of need. None of those were factors that were present at the outset of these proceedings. 45. The risks of course cannot be eliminated, but I am satisfied that they can be managed in a way that allows H to be reunited with the mother. 46. The facts simply do not warrant adoption in this case, something which the guardian now appears, tacitly at least, to accept. 47. I have considered whether the support should be provided under a care order, but I am not satisfied that the circumstances are exceptional enough to warrant that level of interference in the Article 8 rights of the family. The support can be delivered under a supervision order. 48. I am conscious also that I am departing from the recommendations of an experienced guardian. However, I have explained in this judgment why ultimately I am unable to place weight on her final recommendation to the court. 49. There will need to be a transition period of H to the mother’s care. I will hear submissions on how that is to be implemented.”

[28]After judgment was delivered, the judge made an order dismissing the application for a placement order and placing H under the supervision of the local authority for twelve months. An application by the local authority for permission to appeal was refused, but the judge made a care order under s.40 of the 1989 Act pending a renewed application for permission to appeal to this Court.

[29]On 27 March 2025, the local authority filed a notice of appeal to this Court. On 22 April, permission to appeal was granted and the care order under s.40 extended until determination of the appeal.

[30]The local authority’s grounds of appeal contain an element of repetition and can fairly be summarised as follows.(1) The judge failed to give proper consideration to the risks to H if she were returned to her mother’s care and placed too much weight on the positive steps that the mother had made and gave no or inadequate weight to other relevant factors. In reaching his conclusion, the judge failed: (a) to give proper consideration to the risk of harm if H was returned to the mother’s care; (b) to address that the mother had, at times, showed ‘snippets’ of positive change that had not been sustained in the context of a lengthy background of mirror concerns and wrongly disregarded or failed to attach sufficient weight to this; (c) to sufficiently address and/or reason why he was satisfied that the risks could be managed, and/or how they could be managed, if H returned to the mother’s care.

(2) The judge failed to carry out a full balancing exercise and in particular failed: (a) to give any or any sufficient weight to the risks of H returning to her mother’s care; (b) to properly consider that extensive support and protective factors had been put in place previously that were not able to manage the risks; (c) to sufficiently consider any support or protective factors that could be put in place alongside the supervision order and whether such could manage the risks; (d) to take into account material evidence of the recent views of the mother’s independent domestic violence adviser; (e) to properly consider the balance of harm in the context of a lengthy background of mirror concerns.

(3) He erred in failing to consider in the balance the position of the foster carers, having been made aware that they had given notice to make a private adoption application and sought to care for H and did not place sufficient weight on the risk of harm from removing H from their care in the circumstances.

(4) He erred in failing to apply and/or provide sufficient analysis of the welfare checklist, in particular the risks and level of harm.

(5) He failed to carry out a holistic analysis of the advantages and disadvantages of the options for H’s future care and took a linear approach to the analysis.

[31]The principal argument put forward on behalf of the local authority by Ms Joanne Brown KC, leading trial counsel Ms Sabrina Polak, in written and oral submissions was that the judge had failed to evaluate the current risks to H in the mother’s care in the context of the mother’s extensive history of violent relationships, her difficulties in keeping separated from abusive partners, her record of not working openly and honestly with professionals, and her failure to protect her children. Having summarised the findings in the agreed threshold document, the judge made no further reference to them in his evaluation of the current risks. He set out the schedule of “agreed facts” from which he concluded there had been an improvement in the mother’s capacity to protect H, but did not assess those factors in the context of the lengthy background of the mother’s difficulties on the basis of which it was accepted that the s.31 threshold was crossed. It was submitted that he failed to engage with the key issue, namely whether, and to what extent, the mother had demonstrated the ability to make and sustain change.

[32]Ms Brown submitted that it was not enough for the judge to say, as he did in paragraph 27 of the judgment, that he did not propose to summarise the evidence but that he had kept it in mind when reaching his decision. Some analysis of the evidence was necessary. Without that analysis, it was impossible to identify his reasons for putting weight on some factors rather than others. This was compounded by his failure to address the factors in the statutory welfare checklist in s.1(4) of the Adoption and Children Act 2002. Ms Brown pointed to a detailed analysis of those factors in the local authority’s closing submissions to which no reference was made in the judgment.

[33]Ms Brown put forward a number of subsidiary arguments. The judge made no reference to the potential emotional harm which H would suffer through being removed from the care of Mr and Mrs N with whom she had lived for over a year. He set out the disadvantages of long-term foster care as a realistic option but failed to record that no party was advocating that H should be placed in long-term foster care. His observation that the loss of her bond with her mother would “have a profound effect on H, not only throughout her childhood but throughout her life” overlooked the fact that the local authority plan for adoption includes a provision for post-adoption contact with the mother. Finally, he gave insufficient reasons for departing from the assessments of the allocated social worker and the children’s guardian.

[34]The local authority’s appeal was supported by the children’s guardian. Mr Darren Howe KC, leading Mr Paul Froud, (neither of whom appeared below). In addition to adopting Ms Brown’s submissions, they argued that the judge had failed properly to address the case put forward by the local authority and guardian as to why the recent improvements were not an adequate indication of sustainable change when considered against the background of ten years in which the mother had been in a series of abusive relationships which created risks of harm to her children. This view had been expressed in the oral evidence given by both the allocated social worker and the guardian in oral evidence in October 2024 and reiterated in the updating statement of the social worker in February 2025. Mr Howe also pointed out that the judge had wrongly stated that the guardian’s favoured option was long-term fostering. In fact, the guardian supported the local authority’s position that H should remain with her current carers with a view to being adopted by them in due course.

[35]On behalf of the mother, Ms Louise MacLynn KC and Ms Carolyn Jones emphasised the changes in the mother’s life between the start of the final hearing in October 2024 and its resumption in March 2025, which they described as positive, significant and substantial. They accepted that the decision was “finely-balanced” and that the judge’s reasons had been “relatively brief”, but submitted that they contained a sufficient explanation for his decision. He had referred to the “extensive history of local authority involvement arising from the mother entering into abusive relationships with men, including the father of the four older children” and was clearly aware of, and had taken into account, the concerns about the mother concealing information from professionals. They accepted that he did not set out in terms what evidence he had read or heard, but submitted that there were many parts in the judgment which reflected the evidence he had considered. He had referred to the core case of each of the parties and given his reasons for rejecting the local authority’s position. His explanation for his conclusion was set out in sufficient detail in paragraph 43 of his judgment quoted above. Ms MacLynn submitted that the schedule of agreed facts demonstrated that the changes in the mother’s life between the start of the final hearing in October 2024 and its resumption in March 2025 were positive, significant and substantial. They showed all the areas of improvement in her circumstances which directly related to the risk of harm if H were returned to her care and her consistent engagement with support services. It was of particular significance that she had supported the prosecution against the father. She had given evidence at the criminal trial which resulted in his conviction. On the basis of that evidence, the judge was entitled to conclude that she had developed the necessary insight and resilience to permit him to make an order for H’s return to her care.

[36]Ms MacLynn accepted that, having recited the agreed threshold findings, the judge did not make specific reference to them again in the judgment. She submitted, however, that, reading the judgment as a whole, it is clear that the findings were taken into account in his welfare analysis. Although he had made no reference to the statutory welfare checklist, he had in fact referred to all the relevant factors in the course of his judgment.

[37]Ms MacLynn pointed out that neither the local authority nor the guardian had made any attempt to seek further or expanded reasons from the judge, as advocated by this court in English v Emery Reimbold & Strick

[2002] EWCA Civ 605

and in many subsequent cases, including appeals in the family jurisdiction. She submitted that, in a case where a party considers the reasoning in a judgment to be inadequate, it is incumbent on them to seek clarification from the judge as a first step before embarking on an appeal which will only add to the delays in reaching a final decision about a child’s future. This was a particular concern in the present proceedings which had already lasted for twenty months by the date of the adjourned final hearing.

[38]In brief submissions on behalf of the father in opposing the appeal, Ms Lucy Reed KC leading Ms Nicola McIntosh submitted that risk is not static and the “agreed facts” put before the court in March demonstrated a significant shift in the mother’s insight and therefore a reduction in risk by the date of decision, something which the trial judge was best placed to conduct.

Discussion and conclusion

[39]The central task for the Family Court in this case was the evaluation of risk. The context of that evaluation was the mother’s very worrying history, extending over many years, of being trapped in abusive relationships in which her children were exposed to the risk of harm. The history also demonstrated repeated failures by the mother to work openly and honestly with professionals to alleviate the risk. That pattern had continued when she was expecting H in 2023, and in the early stages of the present proceedings when, after completing the assessment in the residential unit and returning to the community, she secretly continued her relationship with the father, leading to the violent assault in her home in December 2023. The judge was right to take into account the recent factors which were said to show an improvement in the mother’s attitude to the father and her awareness of risk, but before he could safely conclude that she had developed “the necessary resilience and insight” which would “enable her to protect herself and H from the risks from the father and from any other individual with whom [she] forms a relationship in the future who turns out to be abusive”, he needed to analyse the recent developments in the context of the mother’s history. The judgment contains no such analysis. Having recited in full the agreed findings on which the threshold criteria under s.31 were satisfied, the judge made no further reference to them in reaching his conclusion as to the extent of the future risks.

[40]It is axiomatic that a judge must consider the totality of the evidence. In this case, the judgment needed to include a summary and assessment of the evidence of the mother, the allocated social worker and the guardian about the issue of risk. I accept the local authority’s submission that it was not enough for the judge to say that he did not propose to summarise the evidence he had read and heard in the case but that he had kept it all in mind when reaching his decision. He made no reference to the evidence of the social worker or the mother, and his reference to the guardian’s position included a misstatement of her recommendation. Given the importance attached to the recent developments which were asserted on behalf of the mother to demonstrate that the risks had reduced, it would have been preferable, in my view, for the judge to have heard further oral evidence from those three witnesses at the adjourned hearing in March 2025. In the event, that course was not taken, and the only updating evidence was the social worker’s written statement in which she expressed the view that the risks to H would remain until the mother accepted responsibility for her actions. It was incumbent on the judge to give some reasons for rejecting her evidence as to the continuing risk, but the judgment contained no reference to the statement at all.

[41]It is equally axiomatic that a judge must not treat the evidence in compartments but must consider each piece in the context of the rest of the evidence: per Butler-Sloss LJ in Re T

[2004] EWCA Civ 558

paragraph 33. In this case, the judge effectively left the threshold findings in one compartment, and then set out the agreed factors which indicated some improvement in the mother’s capacity in a separate compartment, without analysing whether, and if so how and why, those factors alleviated the risk to H which was established by the threshold findings. Instead, he merely asserted, on the basis of those factors, that the risks had abated to such an extent that H could return to her care under a supervision order.

[42]It is, of course, correct, as Lewison LJ observed in Fage UK Ltd v Chobani UK Ltd

[2014] EWCA Civ 5

at paragraph 115, that an appellate court must “not interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them.” In the following paragraph, Lewison LJ spelt out the judge’s duty in these terms:

“He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”

[43]In this case, however, it is necessary for this Court to intervene because the judgment does not provide any or any adequate explanation of the basis on which the judge concluded that the risks had abated to the extent that it was safe to allow H to return to the care of her mother. It is notable that he set out the matters which were not in dispute – the extensive factual findings of exposing her children to a serious risk of harm, stretching back over a number of years, on which the s.31 threshold was crossed and the recent factors which indicated a degree of improvement – but did not explain his reasons for concluding that the latter outweighed the former in the evaluation of risk.

[44]That omission might have been avoided had the judge carried out an analysis of the relevant factors in the statutory welfare checklist. Those factors include, inter alia, under paragraph (e) “any harm … which the child has suffered or is at risk of suffering” and, under paragraph (f)(ii) “the ability … of any of the child’s relatives … to provide the child with a secure environment”. The welfare checklist thus provides the structure on which the necessary analysis of risk can be built. The judgment in this case was silent as to this analysis.

[45]Ms MacLynn was right to say that a party must always consider the option of seeking clarification of a judge’s reasons before embarking on an appeal, provided that such requests are confined to the circumstances identified by this Court in Re YM (Care Proceedings)(Clarification of Reasons)

[2024] EWCA Civ 71

. On the other hand, as this Court also observed in Re O (A Child) (Judgment: Adequacy of Reasons)

[2021] EWCA Civ 149

at paragraph 61:

“where the omissions are on a scale that makes it impossible to discern the basis for the judge's decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal.”

The deficiencies in the judgment in this case were not capable of repair through the process of seeking clarification.

[46]The judge recognised that his task in this case was as prescribed by Peter Jackson LJ in Re D (A Child: Placement Order)

[2022] EWCA Civ 896

(paragraph 1), in a passage cited by the judge in his judgment, “The court must therefore evaluate the family placement and assess the nature and likelihood of the harm that the child would be likely to suffer in it, the consequences of the harm arising, and the possibilities for reducing the risk of harm or for mitigating its effects.” But that evaluation required a careful analysis of the evidence which regrettably was not carried out in this case.

[47]For those reasons, I would allow this appeal and remit the matter to the Family Presiding Judge for allocation to another judge. I stress that nothing I have said in this judgment should be read as indicating any view as to the eventual outcome. It may be that, after a full analysis of the evidence and the relevant factors in the welfare checklist, at the next hearing, the next judge will arrive at the same conclusion. But in any case where the threshold criteria under s.31 are satisfied, the decision as to the child’s future care can only be made after such an analysis has been conducted. LORD JUSTICE HOLGATE

[48]I agree. MR JUSTICE COBB

[49]I also agree.

Order

Proportionality)

[2018] EWCA Civ 2761

, and Re B (Adequacy of Reasons)

[2022] EWCA Civ 407

. He then recited the threshold document and added that he made the findings set out therein and was satisfied on the basis of those findings that the s.31 criteria were met.