CA-2025-001313 & CA-2025-001318 - [2025] EWCA Civ 1044

These case management decisions arise in a wide variety of settings and decision-making judges must tailor their approach to the facts of the individual case. Here, it is accepted by the local authority that the judge asked himself the right question:

“27.

… A finding which would or be likely to identify an existing and continuing risk of a material/significant nature and, which without fact-finding determination, could not be properly brought into the process of risk assessment, will in my assessment almost always require adjudication by way of fact-finding hearing. To fail to do so would mean any care planning would be structured without regard to the risk leaving the subject child at risk of harm. In such a case the care planning would be materially changed from what it would otherwise have been had a finding not been made…

28.

The question for me in this analysis is as to whether the care planning for X would in fact or in all likelihood be materially different by reason of the Court finding that some 7 years previously and whilst herself a child the Mother acted in a manner which led to the death of Z?”

While all relevant factors had to be considered, the fulcrum of the balancing exercise was therefore the question of whether a finding about Z’s death would realistically be likely to have a material impact on the orders that might be made about X.

As noted above, the appellants’ central argument is that, because the court is required to assess risk on the basis of proven facts and not on assumptions or suspicions, the judge was therefore obliged to find that the risks to X could not be properly assessed without a determination of whether the mother was responsible for Z’s death. Mr Twomey argued that professionals and the court could not properly answer any of the four Re T questions. Shorn of a finding about Z, everyday findings about the mother’s volatility, aggression and impulsivity would be ‘a world away’ from a finding that she might pose a fatal risk to X. Further, the judge’s working hypothesis that Z’s death was a result of impulsive behaviour, and not something more sinister, was speculative in the absence of a trial.

In my view the judge was entitled to reject those arguments for these reasons.

In the first place, case management decisions always require judges to make reasoned projections about whether or not a direction will promote the over-riding objective of enabling the court to deal with the case justly, having regard (in a family case) to child welfare. That calls for a comparison between the likely realistic outcomes at each stage of the proceedings if a direction is or is not made. In making the comparison, the court takes a fair and practical view of the evidence and the inferences that it might bear. That is right and proper, and it does not amount to a mini-trial.

Here, the realistic range of fact-finding outcomes were: (a) a finding that the mother was responsible for Z’s death, (b) a ‘pool finding’ that included the mother, and (c) a finding that the allegation was unproven. As to that, the judge sensibly proceeded on basis (a) at this stage in the light of the complexion of the inquest evidence.

For the same reason, the judge understandably proceeded on the basis that the evidence suggested an impulsive shaking event, as opposed to sustained or cruel mistreatment. That reading was supported by the medical evidence and was soundly based in the court’s general experience. It was also supported by the way the local authority had pleaded its case, as paragraph 2 of the revised threshold document, cited above, asserts that the cause of Z’s injuries was abusive head trauma, consisting of shaking and/or impact followed by collapse. If more were needed, it can be found in these exchanges between the judge and Mr Christopher Archer, then the advocate for the local authority:

“JUDGE WILLANS: … I am not going to engage in a mini trial. I did say at the start that I might be talking in terms of what-ifs. But taking the local authority's case at its highest, I mean, we are all familiar with cases involving these sort of issues without this outcome, and we are all aware of the conclusions courts often come to which is not, necessarily, an intended or malicious action of temporary loss of control and the like. Evidentially, when one looks at something which happened a year ago, the court often reaches that conclusion, unless there is something that stands out, that demonstrates that there was more going on. If you are looking back now at eight years, the prospects shifting from that, at most, is going to be very challenging. I mean it would probably be realistic to take the view that the local authority's case at its highest would be, in a moment of something such as frustration or temporary loss of control, there was a shake. That is probably, it seems likely, as far as one might go, taking at its highest.

MR ARCHER: I would refine that slightly, my Lord, respectfully and say in a moment of madness, given the vulnerabilities which the mother had and which she continues to have.”

And shortly after that:

“JUDGE WILLANS: … That is the nub of it and you say, well, that is impulse, this is impulse and we need to follow that. It is not as simple as that, but you are saying there are impulsive behaviours now, that might be an impulsive response and, therefore, we need to be able to work through the risks that may be associated with further impulsive behaviours if X remains in her mum's care.

MR ARCHER: Yes.

JUDGE WILLANS: Are you not able to care plan with that in mind, in terms of risk assessments? In terms of, you know, safety plans and structures around the child. Is that not possible?

MR ARCHER: My Lord, my submission on that would be the gravity of the risk is relevant to the qualities of a safety plan, the structure of a safety plan. If the mother's impulsive behaviour, as a result of her mental health difficulties, as a result of cannabis misuse, the local authority would aver, behaves impulsively, it is relevant to know whether, in a moment of impulsive behaviour, the sort of harm that is inflicted, is as serious as occasioned to Z. That is the nexus that I suggest there is between these two events. The relevance is there, because of the fact that these are underlying, innate difficulties that the mother has, which are a factor in what happened in December 2018, we say, and what might happen in the future.”

In these exchanges, counsel was taking a fair view of the local authority’s case, and there is no good explanation for its decision to resile from that approach on appeal.

In the light of all of these matters, the judge was on solid ground in testing the matter with reference to a potential finding that Z was injured during a momentary loss of control by his mother. That projection was based on an appropriately high-level view of the evidence, and not on speculation. Indeed, given the overall shape of the evidence, it is the new argument that a trial might elicit something more sinister that is speculative.

I also consider that the judge was entitled to reject, for the reasons he gave, the core submission that the risks to X could not be properly assessed without a determination of whether the mother was responsible for Z’s death.

In the first place, the local authority itself pleaded that the mother’s character was in itself the source of a risk of significant physical harm to X. As seen above, its first threshold document pleaded at paragraph 2a that:

“2a. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm.”

This clearly refers to, or includes, a risk of significant physical harm.

I have underlined paragraphs 2a and 9 to emphasise that the local authority was advancing a clear, evidence-based case that the mother poses a risk of significant physical harm to X. Paragraph 6 is underlined to show that the only difference is the presence of the word ‘similar’. That takes us to the heart of the appeal, which is whether the judge was entitled to say that a finding under paragraph 9 would mean that:

“… risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’…”

It is at this point relevant to note the difference between the threshold conditions under Section 31 and the welfare decision under Sections 1 of the Children Act 1989 and, if an application for a placement order were to be made, the Adoption and Children Act 2002. The threshold is to be judged at the date when protective measures were taken, here January 2025. The welfare determination, of which risk assessment is a vital component, will be made at the end of the proceedings. That therefore allows the court to take account of all of the evidence, including post-threshold evidence about the mother’s parenting throughout X’s life.

Like the judge, I reject the submission that, without a finding about Z’s death, risk assessors including the court cannot effectively consider the full range of risks to X. Mr Twomey’s submission is that it would be ‘out of bounds’ to take account of a future risk of maximum gravity without a past finding of maximum harm. I do not accept this. It is common experience that very serious harm may befall a baby at the hands of a carer who is “easily triggered”, “quick to anger” and “without coping mechanisms”. Risk reduction or management would be further affected if it were additionally shown that there is “a long and consistent description of [the carer] being emotionally labile, hostile, angry and non-collaborative”. Of course, characteristics of this kind might or might not lead an assessor or a court to find that the risk to a particular child was unacceptable. That would depend on the case. The court has, in Lord Nicholls words, to found its decision on the likelihood of a future happening on a basis of present facts and the inferences fairly to be drawn therefrom, with emphasis on the infinite range of the facts which may be relevant. Here, the judge reached a proper conclusion that care planning and risk assessment would not materially change as a result of a finding about Z’s death. A valid risk assessment could take place on the basis of the long-standing evidence about the mother’s character and an assessment of her current parenting of X. An assessment of what happened to Z in 2018 was not necessary for that purpose.

In contrast to this case, there will be situations where proof of the threshold, and thus the very ability to take protective measures. depends on a single issue. For example, where a child has died or been injured in circumstances where no other allegation is made against the parents, as occurred in Re H and Re P. In other cases, the index event has come ‘out of a clear blue sky’. That, as was said by Lord Nicholls in Re H and by the judge in this case, is a very different situation, because a finding about the index event is then essential for the assessment of risk. That is not the case here.

It is also a misconception to consider that the four Re T questions could not be satisfactorily addressed. As I have explained, the judge was entitled to proceed on the basis that the type of harm that might arise includes very serious physical harm. The likelihood of it arising could fairly be judged from an intensive assessment of the mother’s long-standing character traits and present parenting. The consequences for X of an assault might be of maximum severity and, contrary to the appellants’ submissions, the judge took full account of that. The reduction or management of risk will depend upon an assessment of the mother’s insight and her ability to accept support and guidance.

The plain fact is that a decision about X’s future is likely to be a difficult one, regardless of what may have happened to Z. It was not unreasonable to think that it might be made easier by deferring it and undertaking a lengthy investigation into Z’s death. Indeed, the judge accepted that a finding might be “helpful”, but he was entitled to conclude that it was not necessary, and that, taken alongside the heavy disadvantages of fact-finding, it should not be attempted.

A further point is that progressive care planning for X had been going on without the issue of Z’s death being resolved. The judge did not place decisive weight on this, but it is not surprising that he took note of the mismatch between the local authority’s submissions and what was happening on the ground. The local authority might have relied on Z’s death to justify the removal of X at birth, but it did not think that would be right. Several months later, there had been no plan for separation. If that were to change it would, as the judge said, be the result of current events and not historic ones. As matters stand, it is curious that the local authority proposes that X remains with her mother (with support) for a very lengthy interim period with a view to reviewing that plan following litigation about Z’s death. The judge understandably considered that these practical considerations gave some support to his decision in principle.

The appellants correctly assert that a conclusion that the mother might have caused Z’s death, or that it can be assumed that she did so, would not be a legally valid finding of fact. But they go on, incorrectly, to assert that the judge proceeded on the basis that the risk to X can be assessed on the basis of suspicion about what happened to Z. As I have shown, that is not what the judge decided. He took the local authority’s case about Z’s death at its realistic highest in order to consider the likely evidential product of an investigation of that issue for the welfare determination. He did not, as the appellants argue, prevent them from making a legally valid case that a loss of control might have consequences of maximum severity, and he expressly preserved all risks for consideration.

There is one further point, which the judge did not labour, but which supported his decision. He remarked that there was “a fundamental question as to the extent to which any fact-finding will in fact take the case forward”. The appellants submitted that fact-finding would enable the court to determine how and why Z died. That seems to me to be asking a great deal of the fact-finding process. If the mother assaulted Z, only she knows how and why, and even if she is now capable of explaining, she has spent years in combative denial. The evidence, most notably the detailed record of the coroner’s inquest, shows that there is very little prospect of a further fact-finding process, seven or eight years after the event, providing any real illumination on these matters. It would no doubt formally establish that Z died of a shaking injury and the court might very well conclude that the mother was responsible. Anything more than those binary facts is scarcely to be expected, and the effort and expense of the process would almost certainly be hugely disproportionate to the evidential product. The fact that the mother makes no concessions at all about her behaviour at any time was not a matter of significance for the judge’s decision. The fact that the process would cost hundreds of thousands of pounds of public money is something that he was certainly entitled to take into account in the balancing exercise.

The remaining arguments advanced by the applicants are acknowledged to be peripheral, and I need say no more about them.

Since writing this judgment, I have had the advantage of reading the judgment of Lord Justice Baker. He too considers that the central question is whether the judge was bound to conclude that a finding about Z’s death might increase the likelihood and potential extent of harm to X (see paragraph 90below). The judge might indeed have taken that view, but after due consideration he preferred the argument that a probable finding that X was likely to suffer ‘significant physical harm’ arising from his mother’s impulsivity was a sufficient basis for future risk assessment and, if applicable, risk management. Like him, I do not consider that such a finding would tie the court’s hands in this case: if that were so, the likelihood and consequences of ‘significant physical harm’ would have to be allocated notional ceilings. It is of course right that many impulsive individuals do not injure their children, and that where children are impulsively injured, they are more likely to suffer minor injuries than to be severely injured or killed. But the essence of impulsivity is that one cannot be sure. The position can be contrasted with cases of premeditated harm, such as cruelty or sexual abuse, where the predictive force of past behaviour is much stronger, and where the absence of a necessary finding might have serious safeguarding consequences.