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

The core submission of the grandparents is that a flawed welfare analysis that gave insufficient weight to the positive features of the family placement led to an order that was unnecessary and disproportionate. It is also said that Ms Sensicle’s report was flawed in that it relied on unknown and unidentified matters.

In response, the local authority, through trial counsel Mr Poole, candidly acknowledged that it had relied only on the core facts of the grandfather’s convictions and the uncle’s admissions, in combination with the grandmother’s limited protective ability, as a basis for its case on the extent of the risks. It argues that these were proper factual foundations for her assessment. There was nothing objectionable in the references to the other complaints against the uncle or to R’s behaviour. The recorder was not requiring absolute safety, but rather assessing whether the home placement was safe enough. The family’s track record of cooperation had to be seen alongside its lack of insight into risk.

The Children’s Guardian also defends the judgment. Overall, the recorder took all matters into account. The advantage she enjoyed in hearing the evidence should be considered and this court should not engage in narrow textual analysis. In written submissions, reference was made to Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam) for the proposition that, whilst the court cannot rely on suspicions or concerns, it can look at the totality of the facts in making its assessment. In oral argument, Mr Tyler KC accepted that the recorder did attach some weight and significance to unproved matters. However, relying on R (on the application of Pearce) v Parole Board for England and Wales [2023] UKSC 13, [2023] AC 807 at paragraphs 61-65, he submitted that she was entitled to do so. When carrying out a risk assessment the court is engaged in a complicated process and is entitled to take into account all relevant facts and circumstances. Not every fact on which a risk assessment is based requires definitive proof before it can be relied upon. The “fact in issue” here was the level of risk. It was therefore permissible for the recorder to rely on “background factors” and “a panoply of sub-facts” when surveying the “wide canvas”, such as the matters contested by the uncle and the reports from R’s school, when making her welfare assessment. It would take a lot of time if the local authority was required to prove all these facts. In any case the principal pillars of the local authority’s case rested on proven facts, but there were also other details that the court could not ignore. The recorder was certainly entitled to be significantly concerned by the reports from R’s school.