CA-2025-001564 - [2025] EWCA Civ 1368

Although the grandparents were legally represented at the hearing, they took no immediate steps to seek a stay of the order. As a matter of law, there was accordingly nothing at that stage to prevent the local authority from moving to implement its care plan. However, that process immediately became fraught with difficulty. On 12 June, it wrote to inform the parties that the long term foster carers identified in the judgment had changed their minds and that (contrary to what the social worker had been told during the hearing) were now only offering an emergency 7 day placement. They were not happy that the children had run around their home on an introductory visit, something the social worker considered to be normal.

On 13 June, the local authority solicitor informed the parties’ solicitors that another placement had been identified in a neighbouring borough, and that the children could potentially move on 17 June.

On 16 June, and twice thereafter, the recorder was informed as a matter of courtesy about what was taking place.

The children did not move on 17 June because the social worker had not yet visited the proposed foster home. On 18 June at 12.12 the solicitors for the grandparents emailed the local authority solicitor saying that they now represented the grandparents as well as the father, that the grandparents now intended to apply for permission to appeal from the care order, and that counsel was in the process of drafting papers. Despite this, no request was made for the removal to be paused, and no application was made to this court for an urgent stay. Instead it was noted that the social worker had told the grandparents that the move would take place that day, and an assurance was sought that the children would not be moved before proper introductions had taken place.

At 13.21, the Guardian’s solicitor wrote that the Guardian, who had just returned from leave, was concerned at the plan to remove the children from school that day and place them with foster carers without any of the introduction or preparation work that the social work team had told the court would happen.

The local authority solicitor replied at 15.08 saying that she had spoken to the social worker and team manager and that they awaited sight of the asserted error of procedure or law. The message contained a statement (in bold type) that “The LA will now effect the delayed move to foster placement today.”

So it was that on 18 June 2025, the children were moved without introductions to a substitute foster home in the face of a proposed in-time appeal.

On 26 June 2025, the grandparents’ Appellant’s notice was finally lodged with this court. It contained no request for a stay or for an urgent hearing. It was sealed on 1 July and served on the parties on 2 July. It was accompanied by grounds of appeal and a skeleton argument prepared by Mr Redley, who had acted for the father at trial. In the absence of any indication of urgency, it was referred to me on 16 July and on 18 July I granted permission to appeal, stating that an appeal had a real prospect of success for reasons given in unusual detail:

“An appeal would have a real prospect of success. This was a single issue case. Apart from the risk of sexual harm, all other factors strongly pointed against the children’s removal. It was therefore important for the court to clearly identify the factual foundations upon which its risk assessment, and that of the expert witnesses, rested. The grandfather’s offending dated from 40 years ago. The recorder does not appear to have made any findings of fact about the uncle’s past behaviour, he having admitted only one incident when he was aged 11. It is understandable that concern would be felt about other allegations prior to 2015 (see 31(5)), but the court’s risk assessment had to be based on proven fact and not on concern or suspicion, even if expressed by experts. It also appears that the recorder impermissibly relied on an allegation about R’s behaviour without making any finding of fact about it: 51, 137-141 and 166-167.

It is further arguable that the welfare assessment was overwhelmed by a requirement to keep the children ‘100% safe’ (97) and an assumption that foster care is risk-free (161), but welfare decisions do not require the elimination of all risk. Finally, it is arguable that the recorder dismissed the option of a supervision order without fully considering its protective potential in a case where the family had a history of co-operation with professionals.”

In the meantime, two further significant things were happening, unbeknownst to this court. First, on 2 July 2025, a fortnight after their removal, the children were moved again following an allegation by 5-year-old L (supported by evidence from a family support worker) that the male foster carer had slapped his face. They were then immediately placed with an emergency single foster carer, pending the outcome of an investigation, and they have remained there since. Second, the children did not see their family at all until three weeks after their removal. Contact then took place once a week on four occasions (11, 18 and 25 July and 1 August). Despite the grant of permission to appeal on 18 July, it was then reduced to fortnightly (15 and 29 August) and from September to monthly.

I am to a degree sympathetic to the position that the grandparents found themselves in following the recorder’s decision. Their legal aid will have expired with the final order and their application was then pursued by their son’s legal team. It is nevertheless frustrating that they took no step to seek a stay from the recorder at the time the order was made, or from this court subsequently. Had that been done before the children were removed, a stay would undoubtedly have been granted, sparing the children much disruption. The only saving grace is that they have been able to stay together and to remain in their old school: but that cannot be taken for granted when children are being moved around the care system at speed.

I express real concern at the actions that the local authority took once it had been invested with these care orders. Regardless of the merits of any appeal, there was no urgency about the children’s move. The abrupt withdrawal of its chosen carers should have taught it the need for caution in executing its care plan, which was for the children to make one move to a home where they would remain for many years. Instead, they were hastily removed from their settled family placement after minimal planning, with a notified attempt to appeal and the advice of the Guardian being brushed aside, and two weeks later that foster placement had also collapsed. Whether or not that was the result of the inadequate planning, the children were then subjected to an emergency move to a third foster home in a third borough. On top of that, the local authority forged ahead with a severe reduction in family contact in the face of the grant of permission to appeal. Again, if this court had been told what was happening, it could and probably would have prevented it.

The mishandling of the children’s removal has no direct bearing on the merits of the appeal, but it is a powerful illustration of the uncertainties inherent in long term public care, to which the recorder rightly had regard. L’s allegation and the grandfather’s own childhood experiences should also serve as a strong reminder that foster children are not immune from mistreatment.