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

This appeal concerns three children: R (a boy aged 8), S (a girl aged 6) and L (a boy aged 5). On 5 June 2025 they were made the subject of care orders after proceedings that had begun in December 2022 and continued for five times the statutory 26 week maximum. Throughout that time, they lived with their paternal grandparents, having been placed there in July 2022 with the agreement of their parents, who had caused them significant harm through drug and alcohol abuse, domestic violence and neglect. After this shaky start to life, the children had made good progress with their grandparents and became thoroughly settled over the course of almost three years.

There was no suggestion that any of the children had suffered any harm in the grandparents’ care, nor indeed that the grandparents had ever mistreated their own three children, the eldest being the children’s father. Nevertheless, the court, acting on professional advice, found it necessary for the children to be removed into long-term foster care because of the risk of future sexual harm from the grandfather or from an uncle, the father’s younger brother, who lived in the home until March 2025.

In making this case, the local authority relied on three convictions for sexual offences recorded against the grandfather in the period 1975-1984, when he was aged between 14 and 22, and two sexual incidents involving the uncle, the first in 2007, when he was aged 11, and the second in 2015, when he was aged 20. Those matters were not disputed by the uncle. However, although it made no findings of fact about them, the court also relied on six other disputed allegations made against the uncle in the period 2006-2013 and on four reports of sexualised behaviour by the eldest child at school in 2023/2024. For the reasons given below, that approach to risk assessment was impermissible.

More fundamentally, I conclude that the court’s welfare assessment was overwhelmed by the issue of risk, and that even if the unproven matters could have been taken into account, the evidence as a whole was incapable of justifying the permanent removal of these children from their family. I would therefore allow the appeal and set aside the care orders. In view of the basis on which the appeal succeeds, no purpose could be served by remitting the application for care orders to the Family Court, and it would be particularly unattractive to do so in a case where there has already been so much delay. I would substitute a supervision order for 12 months as a proportionate response to the overall circumstances. It will enable the local authority to ensure that the children’s progress continues and to be alert to any difficulties. If necessary the order can be extended.

It was disturbing to learn, mid-way through the appeal hearing, that the children had been removed from the grandparents before the expiry of the appeal period and in the knowledge that the grandparents wished to appeal. Even after permission to appeal was granted, contact was severely reduced. I will say more about this below. I firmly reject the local authority’s submission that the children should remain in foster care while any remaining decisions are made. On the contrary, the public law proceedings will now end and the children should return to their grandparents as soon as possible. The private law underpinning for the placement is best resolved by agreement, failing which the court can decide.

I would therefore remit the grandparents’ application for a special guardianship order to the Family Court and in the meantime restore the interim child arrangements order that had been in force since December 2022. Under that order, the local authority supported the family with a weekly allowance of £144, and unless we are told otherwise, I would expect this to resume pending a final resolution. I appreciate that the closure of the public law proceedings may bring an end to the grandparents’ legal aid, but the local authority, which now avoids the higher costs of foster care, will no doubt consider assisting them to obtain any necessary advice to ensure that the proceedings are brought to an early conclusion one way or the other.