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

The local authority and the guardian appeal with permission granted by Lord Justice Baker on 4 June 2025. We heard the appeal on 8 July. X and her mother moved from the residential unit to a mother and baby foster placement the following day.

There are in total eleven grounds of appeal, with overlap and over-pleading. The appellants seek the reversal of the judge’s decision. (If the appeal were to succeed, that would surely be the right course, there being no reason for us to remit the question to the Family Court.)

The local authority’s grounds of appeal are these:

1.

The judge wrongly concluded that the allegations concerning the injuries to and cause of death of the subject child’s sibling should not be subject to a fact-finding process. The court was thereby unable to adjudicate upon the potential dangers to the subject child arising from her mother and prevented itself from making an informed decision on the risk of harm to her.

2.

The judge was wrong to conclude that risk to the subject child could be assumed to be based on impulsivity and no more, without first deciding whether the local authority had proved its allegations against the mother and, if so, undertaking a risk assessment thereafter based on any findings made. This approach to risk was speculative.

3.

The judge erred in refusing to investigate the local authority’s allegations concerning the mother’s culpability in the death of her first child on the basis of an erroneous conclusion that the mother’s impulsivity was the only risk factor. In its evidential references document, the local authority highlighted a number of wider canvas points which, in its submission, were relevant to the context in which that child met his death. The Court attached undue weight to the mother’s “impulsivity” and insufficient, if any, weight to the other circumstances surrounding his death, such as the mother’s mental health, her cannabis misuse and her wavering commitment to her son in a context where she was prioritising spending time with Mr A and her emotional focus was largely directed to the problems in the relationship with Mr A.

4.

The judge decided that a fact-finding enquiry into Z’s death was unnecessary on the incorrect basis that a risk assessment of the mother could be undertaken on the basis of the mother’s alleged impulsivity when she had made no concessions as to any such behaviour and none of the alleged recent impulsivity had consequences of a gravity similar to the allegations concerning her care of Z.

5.

The judge’s approach to the issues of (a) public interest in identifying perpetrators of child abuse and (b) the prospects of a fair trial was flawed.

6.

The judge erred in two significant respects when determining not to undertake a fact-finding hearing in relation to the allegations against the mother concerning Z’s death:

a.

in placing weight on an indication having been given in a meeting on 17th April 2025 that a transition home might be in contemplation;

and

b.

in proceeding on the basis that the assessment at the residential unit had “concluded (as it has) without this issue being determined” and that they had not been restricted in their ability to provide a conclusion without the findings being determined.”

The children’s guardian’s grounds of appeal are these:

1.

The judge was wrong in his conclusion that a finding that the mother had brought about the death of a previous child, Z, by abusive handling would not be material to a current assessment of the risk of harm that she currently presents to a baby or infant child in her care. The relevance of such a finding is all too clear to see. The last time the mother had the unsupervised care of a baby, he tragically died in suspicious circumstances and there is persuasive evidence to suggest that he died as a result of inflicted injury and that she, the mother, was the perpetrator. It is axiomatic that a positive finding to that effect would be bound to be relevant to the question as to whether it would be safe for the subject child X to be placed in the care of her mother, and if so, as to what would be the scope and nature of protective measures necessary to arrange to mitigate any properly identified risk of harm.

2.

The decision ignores the binary nature of the standard of proof in care proceedings. The court would either find that the injuries were inflicted by the mother or that they were not. Any risk assessment could only properly take place against the background of a determination of what had actually happened, not what might have happened. The spectrum of risk in a case where the previous child could have been killed by his parent is far too wide to suggest that a viable and effective assessment could take place contemplating all of the forensic possibilities ranging from an unknown and/or innocent cause of death to deliberate infliction of very significant harm.

3.

The notion as posited by the judge that any assessment, including a risk assessment, could proceed on the basis of all of the possible posited scenarios is wrong in law. If, for example, the local authority/assessor took the view that it was simply too unsafe for X to be looked after by her mother because of the circumstances of Z’s death, that would be an impermissible conclusion absent any finding of fact that the mother had handled him abusively. In those circumstances the mother would be quite entitled to submit that this would be an unfair basis upon which her separation from X could be justified. In short, the issue cannot properly be fudged in the way the learned judge’s conclusions require.

4.

The judge’s conclusions as to the proper way to analyse the risks presented by the facts in this case were wrong. It was wrong for him to find that, in this case, it would be a flawed approach to focus on the outcome of an abusive event, rather than the risk of an abusive event happening in the first place. On one viable scenario, the last time the mother acted impulsively when she had sole care of a child, that child died as a result of abusive handling. The outcome could not have been more serious. A proper analysis must consider not just the magnitude of the risk of harmful event taking place (impulsive momentary loss of control), but also the gravity of the consequences of that event (death of a child). Just to focus on the former without consideration of the latter is illogical and a defective assessment of the risk of harm. Any viable risk assessment would be bound to address both elements.

5.

The judge was wrong to have regard to the passage of time (7 years) as being of significance to the assessment of the risk of harm when there was plenty of evidence before the court of the mother’s ongoing personality difficulties, impulsive and worrying behaviour which, on the face of it, stand in harmony with the wider canvas of evidence which suggests that in 2018 she could well have handled Z abusively so as to cause his death.

Oral submissions were more focused, and the appellants’ combined case can be summarised in this way.