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

The recorder approached her task methodically in a 50-page prepared judgment. Having set the scene and recorded the parties’ positions, she referred briefly to the law governing the making of a care order. She noted that the threshold was crossed on the basis of the parents’ actions and remarked that the focus on the hearing was therefore entirely on the welfare of the children. She directed herself that a care order should be an order of last resort even though this placement was with grandparents and not parents. She reminded herself of the family’s Article 8 rights, which required that any interference must be both necessary and proportionate.

The recorder then summarised the sexual convictions and allegations, the assessments, and the oral evidence of each witness, one by one. During that survey, these points were made in respect of Ms Sensicle’s evidence:

Against that background, the recorder made her welfare analysis and decision over the course of a further fourteen pages. At the outset, she commended the parents for acknowledging the harm the children had suffered and for putting their needs first. The recorder then addressed the welfare checklist factors in the following terms.

All the children spoke fondly and positively about living with their grandparents, to whom they have a strong attachment. 2 years and 10 months was a significant length of time in the lives of young children. They were happy and settled and would want to remain. Their wishes could not be the determining factor but it formed an important part of the welfare assessment.

The children’s behaviour had significantly improved in the grandparents’ care over this period. They were all at the same school with good attendance, home support and engagement between home and school.

“118.

The grandparents have done their best to provide the children with a nurturing and loving environment and this has shown in the improvements that the children have made. It is accepted by all the professionals and I agree that they will continue to provide this level of care for the children and are open and willing to engage with external support to help the children continue to progress in the way that they should.”

In the following paragraph, the recorder nevertheless wrote that it was important for the local authority to identify an experienced foster carer, who understands that the children have additional needs and will need to continue to be robustly supported to ensure that they can continue to improve and reach their full potential. That appears to have been written before the local authority had identified a foster carer, something that happened at a very late stage. They then proposed to place these white British children with a British Asian Muslim couple, living in an 8-bedroom house in East London with their own children, aged 10, 8 and one month. The recorder observed that it may be daunting to them to be with a family of a different ethnicity and culture and lead them to feel that they stand out. However, the Guardian had confirmed that she was satisfied with the placement and noted that many foster placements succeed even though they are not culturally matched.

The recorder accepted that the change for the children would be significant. She noted that the father used the word ‘destroyed’ to describe the impact of removal and she accepted that it would be distressing and traumatic to move to the care of a stranger from grandparents whom they love dearly. She further noted the grandmother’s concern that children who had already lost their mother and, to an extent, their father, would now lose their grandparents as well. The grandmother also expressed concern that the children would revert to their previous behaviours if they had to move into foster care, undoing all the progress that they have made. As to that, the recorder said:

“On the other hand, the positive support that the grandparents have given the children over the years and the progress that they have made, may mitigate to an extent the impact of any move on the capacity to manage and process this. I cannot say, but what is apparent is that the children will need significant support to understand, process and manage any move.” (paragraph 123)

The recorder referred to the disadvantages of foster care. Foster placements may break down for one or all of the children, leading them to experience multiple moves and changes throughout their childhoods. It cannot be guaranteed that the children could be kept together. The children would also have a ‘corporate parent’ for the rest of their minority, which can be intrusive as they get older and lead them to stand out amongst their peers.

The recorder also accepted that the prospect of a change of school represented a significant change, primarily because the children were settled at their current school, which had a really good understanding of them and their needs. Overall, she accepted that a change of placement and a change of school would represent a very significant change for the children and one that would cause them a high level of disruption.

The recorder then considered the issue of risk. I extract these passages:

“135.

The primary focus of this Judgement and this hearing has been around the risk of harm arising from the previous convictions of the grandfather and the behaviour of the uncle.”

“141.

… I share the views of Ms Sensicle and the Guardian that it is extremely worrying that not one, but now three generations of the same family have had concerns raised about inappropriate sexual behaviour.

142.

I accept that the grandparents have complied with written agreements around care arrangements with the home for the children, that they have cooperated with the Family Support Worker visits and engaged well with Ms Goddard. Since Ms Sensicle gave her evidence, the uncle has also moved out of the family home. All of this is positive in terms of risk management.

143.

However, I am concerned that the grandparents, despite extensive evidence of the concerns and views of the professionals have not shown a great deal of their own initiative in taking protective steps and are overly reliant on being told what to do.”

“146.

It is clear that the uncle does continue to play a significant role in supporting his parents care for the children, indeed as he always has. However, what was of concern to this Court was that despite the clear concerns expressed about the risks from the grandfather and the uncle, these two adults have been left alone with the children by the grandmother. How can she protect the children if she is not there to oversee where they are and what they are doing. She is reliant on what the grandfather and the uncle say that they are doing.

147.

I must be clear I am not suggesting that anything has happened to the children during this time, but the point is that it increases the risks, it does not decrease them. I am concerned that in allowing this to happen the grandparents have demonstrated to this Court that they do not fully understand the concerns and have insight into these.

148.

I cannot with confidence accept the assertion that the uncle moving out of the home removes that risk, because he continues to play a significant role in the lives of the children.

149.

… In any event the grandparents were in Court to hear the evidence of Ms Sensicle and needed to demonstrate to this Court that they can come up with safety strategies themselves without reliance always on being told what to do.

150.

If I make a special guardianship order, the grandparents gain enhanced parental responsibility. On making such an Order, I would expect the grandparents to be able to make decisions and act protectively for the children on their own. The Local Authority cannot be in the background for the rest of the children’s minority to tell the grandparents what they can and cannot do.

151.

In respect of the grandfather, I accept that he has not offended since his convictions nor have any concerns been raised about inappropriate behaviour by him towards any child. Dr Parsons confirming that this reduces the risk. This was acknowledged by Ms Sensicle as well, albeit she highlights that the children being in his care brings the risk to low-medium.

152.

One then must turn to consider the grandparents’ understanding and insight into the risk that the grandfather, (and uncle) pose and how this sits with protective capacity and risk management.

153.

During these proceedings the risks have been managed, but with a high degree of monitoring, certainly since the Family Support Workers were put in place and the scrutiny of the Court. However, as I set out above, there have been concerns around R’s behaviour, which I do consider to be significant and very concerning in the context of the family’s background.

154.

I do agree with the evidence of Ms Sensicle that without insight, the grandparents cannot act protectively. I also agree with the Guardian that having listened to the evidence of the father and the grandparents, I was not left reassured that there has been any change in that regard and in particular from the grandmother, who would be the adult in the home with primary responsibility to protect. The grandmother said that she did not understand what the risk was from the grandfather and did not agree that the uncle was a risk.”

As to parenting capacity, the recorder considered the mother’s difficulties and then said this of the father and grandparents:

“157.

The father has demonstrated in contact that he can meet the children’s needs well during contact and he makes family time an enjoyable experience for them. The father also acknowledges that he is not able to care for the children full time, which is to his credit, but clearly, he has an important role to play in their lives.

158.

No-one has sought to argue that the grandparents have not met the needs of the children to a high standard. They certainly have. The grandparents have given the children stability, consistency, love and nurture. They have cooperated with the Local Authority and the support that has been put in place.”

Finally, under the welfare checklist, the recorder looked at the range of orders and the realistic options:

“159.

… these would be to make Special Guardianship Orders, with, if necessary, a Supervision Order if I felt the circumstances of this case met the exceptional test. In the alternative, I make a Care Order approving the Local Authority care plan. I cannot instead make a Care Order with the children in the grandparents' care, because I cannot tell the Local Authority what their care plan should be, what would be open to me would be to refuse the Care Order on the current care plan and place pressure on the Local Authority to consider a Care Order at home, but if they refuse it becomes stalemate. In any event, I consider it would be unlikely that given the facts of this case the grandparents would be approved under the placement regulations for a Care Order at home. The law is also clear that Care Orders should not be made with children at home to provide monitoring and support.”

The recorder then moved to give her decision, and again it is necessary to set out a large part of her reasoning.

“160.

This case has never been about the grandparents’ basic parenting capacity. It is about the risk of sexual harm to the children due to generational concerns around sexual abuse of children and inappropriate sexual behaviour and boundaries and the capacity to protect.

161.

The question then becomes can this risk be mitigated enough for it [to] be safe for the children to remain in the care of their grandparents or can that risk not [be] managed such that the only placement that will keep the children safe is long term foster care.

162.

The loss to the children of being removed from the home where they have lived for over 2 years and from their grandparents, with whom they are significantly attached is a significant factor that must be weighed into the balance of harm.

163.

What has also weighed heavily is the potential instability of long-term foster care, particularly the potential for sibling separation and the children having the Local Authority as their corporate parent for the remainder of their minority. The children remaining together is important as they are close and will be there to support one another as they grow up around their shared experiences.

164.

However, I must also balance the risks of sexual harm that have been identified and the obvious harm that would occur to the children if they remain in a placement where they are not kept safe and exposed to sexually harmful behaviour. Ms Stavrou [Counsel for the Guardian] summed this up well when she used the word ‘catastrophic’.”

“166.

For the most part, the children's placement with the grandparents has not resulted in concerns being raised for the children’s welfare day to day. However, it would be disingenuous to say that there have been no concerns, as there have been for R. Ms Sensicle’s evidence about this was compelling when she expressed concern that [in] R a 3^rd generation of the family has displayed sexualised behaviour, where is this coming from and is there something within the household? As I have already said, this cannot be ignored.

167.

There have been no concerns raised about R continuing to show sexualised behaviour since May 2024, but since the written agreement in May 2024 and implementation of family support workers twice a day, including weekends and holidays there has been a high level of monitoring.”

“171.

Where I find that I must also place weight on Ms Sensicle’s assessment is that her views around insight and understanding of risk by the family is shared by Ms Harold and the Guardian and having read the evidence and heard from the father and the grandparents is shared by this Court.

172.

So can these risks be managed? A starting point for this must be that the risks are understood and accepted. That there is insight and not minimisation. Sadly, this continues to be lacking from the adults in the family that would be responsible for protecting the children, particularly the grandmother.

173.

Had I been reassured from hearing from the grandparents and the father regarding their insight and understanding of the concerns, I may have been more persuaded that the risks could be safely managed and without the need for extensive oversight and monitoring by the Local Authority, (24/7 as the Guardian put it). The grandparents minimised the risks from the grandfather or played it down and the grandmother told me she did not understand what the risk was. Both grandparents presented very much that the uncle is not a risk. The father spoke often about the ‘perception of risk’ but that this is minimal and procedures and rules will make this risk non-existent. That is not the evidence of the professionals.

174.

I noted in his letter Dr Parsons talks about denial and minimisation. He states “I can confirm that in my opinion that denial and minimisation do not increase risk, but it does make it difficult to work with an individual in an open, honest and constructive way in order to manage, and in this case, understand risk does remain my opinion. I must stress that even if denial and minimisation were not present, it would never be possible to state that an individual who has allegedly engaged in concerning sexual behaviour in the past, and indeed who has engaged in the past, would not pose a sexual risk in the future. Denial and minimisation simply make this uncertainty greater”.

175.

I am concerned that because there has been a heavy reliance on professionals to put in place rules and restrictions, rather than the family thinking what might be necessary, that alongside the lack of insight that once the scrutiny of the Court and the local Authority falls away, there will be a lapse of protective measures particularly if there is a general feeling that these are not necessary because the risks is very low or non-existent. Ms Sensicle explained that insight is significant as is the ability to maintain this over time as families move on and relax into daily life, matters then get forgotten. It could be predicted that over time during the children’s childhood insight would deteriorate again so if the children are being left at home the risk needs to be so low that it would be okay.

176.

I have said that I accept Ms Sensicle’s assessment that the risks in this case are low to medium and not very low.

177.

I commend the grandmother for taking steps to address the concerns around her health and doing so is of clear benefit for the children. But it seems clear that she still needs a lot of support from the grandfather and the uncle, especially outside of the home, which by her own admission has left the children alone unsupervised with two adults that have been assessed as posing a risk.”

“180.

Any professional monitoring and support that could be put in place would have to be of a high level, akin to constant supervision. This is not realistic nor is it sustainable long term. The current level of family support work cannot be sustained in the longer term. The grandmother is going to have to take primary responsibility to protect and to do this she needed to have a better understanding of the risk and insight into why the children should not be alone with the grandfather or the uncle. Sadly, this remains lacking.

181.

I cannot rely on the children as they get older to raise the alarm if something happened. Children and young people do not always report abuse for lots of reasons. They need the adults around them to be alert and keep them safe. The children also need their carers to teach them about healthy sexual boundaries and I was left very worried about the grandparents’ capacity to do this when they gave their evidence about the uncle’s sexual relationship with a 15-year-old…

182.

A supervision order, alongside a special guardianship order or a child in need plan and written agreements would not in my view sufficiently mitigate the risks in this case. [There] will be limits to the level of monitoring and support that can be provided and because insight into the risks is lacking, the gaps not met by monitoring and support cannot be filled. Just following rules and boundaries is not enough if you don't understand the reasons for this and as special guardians the grandparents need to be able recognise, accept and manage risk themselves.

183.

Ms Sensicle did make therapy recommendations. However, she also said that there was no guarantee that therapy would be successful and, in any event, despite the steps taken by the family to manage the risks she could not see a scenario where it would be safe for the children to remain in their grandparents’ care.

184.

Dr Parsons made no recommendations for psychological therapy.

185.

There are a huge number of positives in this case with the care that the grandparents have provided to the children, but all aspects of the children’s welfare now and throughout their childhood mean that I cannot ignore the expert assessments, the majority of which reach the same conclusion that the children cannot be kept safe in their grandparents’ care.

186.

For all the reasons set out in this Judgement it is with heavy heart that I must conclude that the only placement that will ensure that the children are kept safe from the risk of sexual harm now and throughout their minority is a placement in foster care.

187.

I acknowledge the family's concern about the proposed foster placement, but in reality, it may be hard for the family to accept any placement as being suitable. I have found [the social worker] to have a good understand[ing] of the children’s needs and I am satisfied that she would not agree a placement that was not appropriate. Likewise, Ms [B] is an experienced Guardian, who has considered the placement proposed carefully.

188.

My decision will be devastating for the children and they will suffer a huge loss by moving from the care of their grandparents to a placement with people they do not know and who are different from them. However, the harm that could occur by remaining in a placement that is not safe from the risks that have been clearly identified outweighs this.

189.

The impact of a move into foster care and loss to the children can be mitigated against with sensitive and careful support. The risks within their current home cannot for the reasons I have said, be mitigated safely enough. On the evidence that I have read and heard on that I agree with Ms Sensicle, Ms Harold and the Guardian.

190.

I therefore make Care Orders for all three children.

191.

The making of Care Orders being a necessary and proportionate interference with the article 8 rights of the children and the family.

192.

In respect of contact, it is so very important for the children that they continue to have contact with their grandparents and their father. A move to foster care will be hugely disruptive for the children and they do need to be given the space to adjust to the changes that will be made and settle. I therefore consider that as a starting point, and it is just that, that contact 12 x per year is appropriate. This must be kept under review and adjusted in line with the children's best interests.

193.

I do consider it in the children's best interests to be able to have separate contacts with their father and grandparents as well as contact as a family and that contact is not restricted to a contact centre and can include community activities, which will make the time more enjoyable for the children.

194.

Contact must be supervised at this time due to the risks, but this can also be kept under review.

195.

I hope in time that the mother can reestablish her relationship with the children as they clearly miss her. However, I agree that the mother's contact would need to be subject to a risk assessment and the mother demonstrates commitment before this is considered.

196.

I know that the grandparents and the parents will be devastated by my decision, but I know that they will do their best to support the children with any transition. You remain an extremely important part of the children's lives and always will.”