Court of Appeal judge failed to undertake “necessary holistic review” when approving care plan to remove child from mother

The Court of Appeal has allowed a mother’s appeal against a judge’s decision to approve a care plan to remove her child to be placed with her paternal grandparents, finding that the Family Court judge failed to undertake a “necessary holistic review” when conducting her final analysis and reaching her conclusions.

In M (Care Order: Risk: Family Placement) [2025] EWCA Civ 163 (21 February 2025), Mr Justice Cobb concluded that the judge failed to undertake a “true comparative evaluation” of the placement options before endorsing the local authority's plan to remove the child from the mother, and failed to adequately consider all important wider welfare factors relevant to the child.

The case concerned M, an 18-month-old girl, who has lived with her mother since her birth.

M's father has never lived with them. He is a convicted sex offender, and has been excluded from the family home under an order made by the Family Court shortly after M's birth.

When M was just a few days old, the local authority issued proceedings under the Children Act seeking a care order. It also applied for an interim care order, which was, at the first hearing, made by consent.

At the final hearing of the local authority's application, the Family Court judge made a full care order, approving a care plan to remove M from her mother to place her for her long-term future with M's paternal grandparents (Mr and Mrs G).

It was against this order that the mother appealed.

Mr Justice Cobb noted that in 2014, when 22 years old, the father had been convicted of serious sexual offences against three female children aged between 11 and 16.

He added that the father currently lives with his parents and would need to move out of their home if M was placed into the care of Mr and Mrs G.

The parents had met and began their relationship in 2016.

Mr Justice Cobb said: “It is unclear precisely what the mother knew of the father's convictions in the early part of their relationship, but she appears to have been aware at least of the outline nature of his offences. In early 2022, the mother and father sought IVF treatment. […] It appears that they both misled the fertility clinic by concealing the father's offending history.”

The IVF treatment was successful, and the mother became pregnant. In early 2023, the local authority learned of the father's serious offending history, and of the mother's pregnancy.

The local authority commissioned a report from a clinical and forensic psychologist. Her risk assessment report on the father was provided to the local authority only a matter of days before M's birth.

Having read the report, the mother stated that she would separate from the father. However, the father attended the birth of M, which caused the local authority to question her declared intentions.

Less than one week after M's birth, care proceedings were issued. The application was founded upon the risk posed to M by the father, and the local authority also asserted that M was at risk of harm because of the mother's social isolation, and her ability to be a protective parent towards M.

Following an issues resolution hearing (IRH) some months later, at which the judge found that "leaving the child in the care of the mother is a significant risk", there were two important developments.

First, evidence came to light which revealed that the father had contacted a woman (the mother of a young child) via an online dating/network app. Sexual messages had been exchanged between the father and the other woman.

Secondly, a Family Group Conference took place, involving M's parents and both sets of her grandparents, facilitated by the local authority. At the meeting, Mr and Mrs G indicated that they supported the father returning to the family home to live with the mother and M, and queried what the local authority meant by the term 'significant risk'.

At the final hearing, the Family Court judge was invited to consider two realistic placement options for M: either she would remain in her mother's care, or she would be placed in the care of Mr and Mrs G.

It was the mother's case at the hearing that she had finally separated from the father. The father confirmed that he was not seeking to return to the family home.

In the final judgment, the judge made a full care order, approving a care plan to remove M from her mother to place her for her long-term future with M's paternal grandparents.

Outlining key aspects of the final judgment, Mr Justice Cobb said: “On the key issue of future risk to M, the Judge heard evidence from the father's Offender Manager, from [the psychologist] and from the father himself.

“The Offender Manager had referred to the father as 'high risk' with 'no victim empathy'. [The psychologist] had undertaken a forensic 'sexual violence risk assessment' of the father; she concluded that the father poses a 'significant risk' of sexual harm to M, and to children generally. [The psychologist] opined that it would not be safe for the father to live in a household which included M, either now or in the future.”

In the concluding section of the judgment, the Judge said: "The father is a known and identifiable risk of sexual harm to [M] for the reasons I have given. This risk will increase as she gets older."

“[…] I am satisfied that the risk of sexual harm to [M] (and later to her friends) is more probable than not and that is likely to start with coercive and controlling behaviour, before turning to grooming."

Another element of the judge's assessment of the current and future risk posed to M was whether the mother and father had separated, or would separate, permanently.

Mr Justice Cobb noted: “The Local Authority social worker and [the psychologist] had expressed real doubts about whether the mother would permanently separate from the father. The Judge recorded the many instances in which, during the assessments, the mother had expressed the hope or intention of reuniting with him.

“[…] However, at the final hearing, following the evidence of the social worker and [the psychologist], the mother gave oral evidence. This gave the mother her first opportunity to provide her reaction to the recent discovery of the father's use of Tinder to contact a woman with a young child.

“The judgment had described the mother's evolving view about her relationship with the father but related how the emergence of this evidence had caused the mother to declare firmly that she would permanently separate from the father 'irrespective of the court decision'.”

Mr Justice Cobb noted that the Family Court judge later “raised doubt” about the mother's resolve to separate from the father, and was concerned that her recent declaration of intent to end the relationship "has been led by his perceived infidelity rather than from any child-safeguarding perspective".”

He added that having identified the risk to M, the judge “rightly” raised the issue of whether the risk could be mitigated, but did so “only effectively to dismiss it”.

Turning to the judge’s welfare analysis, Mr Justice Cobb said the judge noted that M would be "bewildered and upset" by removal from her mother; and that "she will miss her mother and […] would be very unsettled and unhappy not understanding the loss of the most important person in her life".

The Family Court judge however concluded: "I do not underestimate that there is a likelihood of rupture in [M]'s relationship with her mother, however I do not consider that this will be deeply traumatic such that it will have a detrimental long-lasting impact upon her sense of self or her sense of security”.

Mr Justice Cobb treated the mother's grounds of appeal as falling under four main heads:

i) The judge's risk assessment was flawed in the following ways:

a) She failed to consider adequately the mother's proven capacity to protect M, which she had successfully achieved for more than one year at the time of the hearing;

b) She failed to consider the efficacy of the steps which could be taken by the mother and/or the monitoring/support which could be offered by the local authority to reduce or mitigate the risk of harm from the father to M going forward;

c) She failed to consider that the risk of harm (on the expert's evidence) would not be likely to eventuate for a number of years, during which time the mother could receive therapy, and the parents' ability to separate could be tested;

d) She failed to consider whether there was a 'likelihood' of sexual harm to M;

ii) The judge failed to undertake a true comparative (side-by-side) evaluation of the placement options, before endorsing the local authority's plan to remove M from her mother and place her with Mr and Mrs G. On the facts of this case, the judge was wrong not to receive evidence directly from Mr and Mrs G;

iii) The judge did not sufficiently consider the proportionality of the care plan when compared to the assessed risk;

iv) In reaching her conclusion as to future placement, the judge attached disproportionate weight to the views of the psychologist, and in so doing failed to consider adequately or at all important wider welfare factors relevant to M.

Discussing the case, Mr Justice Cobb said: “The evidence in this case convincingly demonstrated that the father poses a significant risk to children and young people. The Judge's finding in this regard is unchallengeable.

“It is also clear from the Judge's findings that neither the mother nor the father had been open, honest, and/or co-operative with professionals at all times; the Judge took this into account in considering the parents' ability to co-operate with professionals responsible for managing risk going forward.”

However, he observed that the flaws in the judgment in the case did not lie in the Famiy Court judge's assessment of the witnesses, but in her analysis and reasoning. This was in at least three respects:

i) The judge's assessment of risk failed to take proper account of the steps which had been taken in the short-term, and could be taken in the longer-term, to mitigate the identified risk of harm posed by the father, while allowing M to remain with her mother;

ii) The judge did not undertake a proper comparative evaluation of the two placement options; this fundamentally undermined the proportionality of the decision to remove M from her mother's care;

iii) The judge allowed her assessment of risk so to dominate her welfare evaluation that in reaching her ultimate conclusion she gave insufficient attention to the range of other welfare factors, and to the high degree of justification required to separate M permanently from her mother.

Mr Justice Cobb further noted that there were “several points” in the progress of the application when it would have been appropriate for the judge to consider calling for direct evidence, written or oral, from Mr and Mrs G.

At the final hearing, involving a straight choice between two family placements, there was a procedural imbalance, Mr Justice Cobb said. "The Judge only saw and heard from the mother, and was surely at a disadvantage in making any true comparison with Mr and Mrs G. The mother was examined (it appears from the judgment) critically and forensically through the trial process; Mr and Mrs G were not."

Mr Justice Cobb said it seemed to him that the mother and M were entitled to the procedural protection of being able to test the local authority's case that M would be safer with Mr and Mrs G than with the mother, and the denial of this chance did not look fair.

He went on to say that a side-by-side evaluation of a number of issues, pros and cons, would have been revealing. "For example, did the respective candidates for long-term care of M show markedly different levels of insight into the father's offending?"

The evidence suggested that Mr and Mrs G were "little if any more insightful than the mother", according to Mr Justice Cobb.

On proportionality, he said: “Given the Judge's lack of true comparative analysis, and specifically her failure to consider adequately the measures which would be available to mitigate the risk to M if she remained with her mother, her conclusion that Mr and Mrs G would 'provide [M] with a much higher level of security and safety than one with her mother' lacked evidential support, and was in my judgment flawed.

"The failure of comparative evaluation meant that the proportionality assessment was also lacking."

Turning to the Family Court judge’s welfare evaluation, Mr Justice Cobb found that aside from the risk of sexual harm from the father, “every welfare factor strongly favoured confirmation of the existing arrangements under which M lived with her mother”.

Mr Justice Cobb said that in a judgment of such length it was "surprising that the Judge gave such cursory attention to the welfare checklist...., and in that regard she failed to deal adequately, in my judgment, with at least three factors".

These included that the likely effect on M of a permanent move from the care of her mother was “significantly underplayed” by the judge.

The judge had also reported that she had taken M's "age, sex, background" and relevant characteristics "into account", but did not explain how she had done so.

Finally, there should have been a discussion of the comparative 'capability' of Mr and Mrs G to protect M and meet her global needs. "The Judge was not only inappropriately dismissive of the mother's capabilities in this regard, but she failed in this context to consider the position of the grandparents."

Allowing the mother’s appeal, Mr Justice Cobb concluded: “However conscientious the endeavour in producing a judgment of this length to explain her judicial reasoning, I regret that the Judge failed sufficiently to filter the evidence adequately, she allowed the opinions of [the psychologist] to dominate her thinking, and she ultimately failed to undertake the necessary holistic review when conducting her final analysis and reaching her conclusions.”

Lord Justice Dingemans and Lord Justice Arnold agreed.

The care order was set aside and replace with an interim care order. The matter was remitted to the Family Court to be heard "as soon as possible".

Mr Justice Cobb said: "These proceedings have already been unnecessarily protracted. It would be manifestly in M's best interests for the current uncertainty about her long-term future to be resolved sooner rather than later."