Risk assessment in care proceedings

Reece McAllister analyses a significant Court of Appeal ruling on risk assessment and judicial reasoning in care proceedings.

The recent Court of Appeal decision in Re T (Children: Risk Assessment) [2025] EWCA Civ 93 has reaffirmed the fundamental principles of structured judicial reasoning, proportionality, and rigorous risk assessment in care and placement proceedings. This case, concerning three brothers—A1 (11), A2 (9), and A3 (16 months)—underscores the importance of ensuring that judicial decisions involving the separation of children from their parents meet the highest standards of procedural and substantive fairness.

A1, A2, and A3 have been in foster care since October 2023. ​ The parents appealed against the final care orders made by Her Honour Judge Tyler in August 2024, which placed A1 and A2 in long-term foster care and A3 under a placement order for adoption.

In 2015, A2 suffered a skull fracture while in the care of his mother, leading to care proceedings and the children being placed in foster care. ​ The parents separated, and A1 and A2 were later returned to the father's care under supervision orders, while D, the third child of the mother, remained in foster care. D is not a subject child in these proceedings. In 2019, the father took A1 and A2 to Africa, where they stayed for four years with their maternal grandmother. ​

The parents did not disclose their continued marriage or the children's stay in Africa to professionals. A3 was born in March 2023, and the family reunited in September 2023. ​

In October 2023, a health visitor's referral led to the children being placed in foster care again. The final hearing in July 2024 resulted in care orders for A1 and A2 and a placement order for A3 with judgment given in August 2024.

The parents appealed against the final orders of Her Honour Judge Tyler. The Local Authority and the Children's Guardian opposed the appeal, which was heard before Lord Justice Moylan, Lord Justice Peter Jackson, and Lord Justice Males. The Court of Appeal set aside the care and placement orders, remitting the case for rehearing on the basis that the original judgment lacked structured analysis, a rigorous assessment of risk, and a balanced proportionality evaluation. The interim care orders were reinstated.

This Court of Appeal judgment underscores the need for structured risk assessment, clear judicial reasoning, and a rigorous proportionality evaluation when making care and placement orders.

The legal framework governing care orders

Under section 31(2) of the Children Act 1989, a court may only make a care order if it is satisfied that:

“(2) the child concerned is suffering, or is likely to suffer, significant harm; and

(a) that the harm, or likelihood of harm, is attributable to

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.”

The definition of “harm” in section 31(9) includes ill-treatment or the impairment of health or development, encompassing emotional, social, and intellectual well-being. It must be remembered that the mere presence of risk does not satisfy the threshold test.

Harm is also relevant to the welfare evaluation, with section 1(e) Children Act 1989 requiring the court to have regard to ‘any harm which he has suffered or is at risk of suffering’.

Judicial criticism in Re T: risk assessment and proportionality

While Re T necessarily engaged with threshold considerations, the Court of Appeal's primary criticism was directed at the assessment of risk and proportionality.

Proportionality is central to public law cases, particularly when adoption is under consideration. As reaffirmed in Re B (A Child) [2013] UKSC 33, adoption is a measure of last resort and must be justified through a comprehensive Re F analysis (Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, recently reiterated in Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60.

The Court of Appeal in Re T highlighted that the original judgment by Her Honour Judge Tyler did not properly undertake the Re F analysis. The Court found significant flaws in how Her Honour Judge Tyler reasoned the risk assessment, particularly in establishing the justification for future harm and assessing the welfare implications of removing the children. These flaws included:

1. Lack of effective risk assessment – The judge did not properly identify the type or degree of risk to which each child would be exposed to in her conclusion, nor did she consider questions of risk management.
2. Failure to assess the development of risk over time– Although there were historic concerns, particularly the injury to A2 in 2015, the judgment failed to conduct a structured analysis of how the risks had evolved over time. The Court of Appeal emphasised that an assessment of future risk must take into account whether past concerns have escalated, remained static, or diminished, rather than relying solely on historical incidents. The absence of such an evaluation weakened the justification for the care and placement orders.​
3. Comparison of alternatives – There was no side-by-side comparison of the competing alternatives for the children's care. Instead, the analysis was linear, focusing solely on what the parents could or could not offer.
4. Failure to assess parental roles separately– The Court of Appeal noted that the judgment did not sufficiently distinguish between the roles and capabilities of each parent, particularly regarding their protective capacity. By treating the parents as a single entity, the judgment overlooked important considerations about each parent's individual ability to manage and mitigate risks. ​ This lack of differentiation was a significant flaw in the assessment process
5. Welfare checklist – There was no proper consideration of the welfare checklists under the Children Act 1989 or the Adoption and Children Act 2002, which are essential for evaluating the children's welfare when considering care and placement orders.
6. Proportionality – The judgment lacked a final assessment of whether the orders were proportionate, which is crucial for justifying such significant decisions.

Lord Justice Peter Jackson set out a clear list of questions that should have been addressed in the judgment. These questions are:

1. What type of harm has arisen and might arise? ​
2. How likely is it to arise? ​
3. What would be the consequences for the child if it did? ​
4. To what extent might the risks be reduced or managed? ​
5. What other welfare considerations have to be taken into account? ​
6. In consequence, which of the realistic plans best promotes the child’s welfare? ​
7. If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate? ​

The deficiencies within the judgment of Her Honour Judge Tyler led to the conclusion that the original judgment did not justify the far-reaching decisions made, resulting in the care orders and placement order being set aside and the case being remitted for rehearing.

Conclusion: Lessons from Re T

The Court of Appeal’s decision in Re T provides critical guidance for future public law cases, reinforcing that:

• Risk assessments must be rigorous, structured, and evidence-based;
• Judicial reasoning must properly link risk assessment to the welfare stage and welfare analysis; and,
• There must be a properly conducted Re F proportionality analysis in all cases and particularly in those cases which result in severing family ties.

Re T strengthens the integrity of child protection law and ensures that state intervention is only justified where truly necessary and proportionate. The judgment underscores the judiciary’s duty to ensure that care and placement orders are underpinned by robust, evidence-based reasoning and structured risk assessment rather than broad assertions of harm.

Reece McAllister is a pupil barrister at 18 St John Street Chambers.