Court of Appeal orders rehearing in care proceedings over “incomplete” risk assessment by judge

The Court of Appeal has allowed an appeal against a Family Court order concerning where two young children should live.

Giving judgment, Lord Justice Peter Jackson said Her Honour Judge Sarah Davies had been working “under heavy pressure” and although paying tribute to her work said the application by the unnamed local authority for a supervision order should be remitted for rehearing by a judge to be nominated by the Family Presiding Judge.

The case concerned O, a girl aged five, and Y, a boy aged 1.

Peter Jackson LJ said: “Until the order under appeal, they had always lived with their mother. She provided excellent care and the children were thriving. After her parents separated, O spent regular time with her father by agreement.”

Y's father Mr F is “a violent and cruel man, who would be likely to harm any child in his care”, the court heard.

He and the mother began a relationship in December 2022, and when Y was born the local authority applied for a supervision order to protect the children from Mr F.

An interim order was made and the mother gave undertakings that Mr F's contact with Y should be limited and supervised.

She later said the relationship ended, but HHJ Davies believed that, if social services were not involved, they would resume their relationship.

Although the mother was willing to agree to any protective orders, HHJ Davies accepted the case put by the local authority, the children's guardian and O's father, that the risk from Mr F was too great.

She ordered O should live with her father and that Y's maternal grandfather should become his special guardian.

This was put into immediate effect, despite the mother's request for a stay, Various conditions determined contact times but no order for supervision was made.

Peter Jackson LJ said: “But for the risk from Mr F, every welfare factor strongly favoured confirmation of the existing arrangements.

“The correct outcome therefore depended critically on the assessment of that specific risk. As to that, my conclusion is that [HHJ Davies’] assessment was incomplete to such an extent that the proceedings must be remitted for a fresh decision. In the meantime, the pre-existing arrangements will be restored.”

The mother’s case had been that she had complied with her undertaking to keep the children away from Mr F.

Peter Jackson LJ said a clear finding was necessary to underpin the risk assessment and it was “unsatisfactory for the judge to refer to aspects of the evidence…but then to leave the matter undecided.

“What she described as 'worries' were no basis for an adverse decision. If the mother had obeyed the court's directions, that should have been factored into the risk assessment.

“There needed to be clarity about whether, as well as lacking insight, she was untrustworthy.”

He said the risk of harm was one of several factors to be assessed, and in a case such as this where the outcome “was considered by the judge and all the professionals to be finely balanced, a solid risk assessment was critical.

“The respondents broadly argue that the judge had the advantage of assessing the mother in evidence and that the judgment as a whole covers all the necessary ground.

“I cannot accept this. It is clear that the judge thought carefully about her decision, but the conclusion that the mother does not share her assessment of Mr F as a dangerous man could not on its own be determinative. That was particularly so as this was a difficult welfare outcome for these children, under which they are separated from each other but have high levels of contact with their mother under uncertain and possibly disadvantageous arrangements for supervision for the indefinite future.”

Peter Jackson LJ said the children should return to their mother, “both as a matter of welfare and of justice”, and that the parties should agree interim arrangements to keep Mr F away from the children, except for supervised contact with Y.

“The mother will understand the likely consequences of any breach,” he added.

Lord Justice Warby and Lord Justice Snowden both agreed.

Mark Smulian