K-H (Children) (Care Orders: Proportionality)

In care proceedings, future risk of harm must be assessed on facts proved to the requisite standard and proper inferences from those facts. Unproved allegations, suspicions and concerns cannot themselves provide the foundation for a risk assessment. The court must balance identified risks against the children’s welfare as a whole. Protection from all risk is not the legal standard. Removal from a settled family placement requires compelling justification where the placement is meeting the children’s needs and the proposed alternative carries substantial disadvantages. A care order is disproportionate where risk has been given excessive weight and the evidence cannot reasonably justify permanent removal.

Three children had lived with their paternal grandparents for nearly three years after suffering neglect and instability in their parents’ care. They were settled, progressing well and had suffered no harm in the grandparents’ home. The local authority nevertheless sought long-term foster placements because of the grandfather’s historic sexual convictions, two matters admitted by an uncle, disputed allegations concerning the uncle, and reports of sexualised behaviour by one child at school.

The Family Court at East London, Recorder Youdan, made care orders on 5 June 2025, after proceedings substantially exceeded the statutory 26-week period. The recorder found that the risks could not be safely managed through supervision and that foster care was necessary and proportionate. The grandparents appealed, challenging the treatment of unproved matters and the proportionality of removal.

1. Appeal allowed. Lord Justice Peter Jackson gave the leading judgment, with Lord Justice Coulson and Lady Justice Elisabeth Laing agreeing. The care orders were discharged. Supervision orders for 12 months were substituted, the interim child arrangements orders were restored, and the grandparents’ applications for special guardianship orders were remitted to the Family Court.
2. Under the Children Act 1989, the likelihood of future harm is assessed by asking whether there is a real possibility of harm which cannot sensibly be ignored, having regard to its nature and gravity. The factual foundation must consist of facts proved to the requisite standard and inferences properly drawn from them. This applies both to the threshold under section 31 and to risk assessment under section 1(3).
3. The court may refer to unproved evidence to explain events, but cannot rely on disputed allegations, suspicions or concerns as a basis for assessing risk. Case management may limit the facts requiring determination, but evidence relied upon to justify an order must be assessed and, where necessary, resolved. The submission based on R (on the application of Pearce) v Parole Board for England and Wales was rejected because that decision concerned a different statute and context.
4. The recorder was entitled to identify a risk from the grandfather’s convictions and the uncle’s admitted conduct. She nevertheless failed to distinguish admitted from disputed matters and was materially influenced by unproved allegations about the uncle and unproved reports of the child’s behaviour. The asserted pattern across three generations was unsupported by any proved link between the relevant conduct. Reliance on speculation about the source of the child’s behaviour was impermissible.
5. The welfare evaluation was manifestly wrong. The recorder gave patently excessive weight to possible sexual harm and treated the absence of protective insight as effectively preventing protective action, despite the grandparents’ sustained cooperation, high standard of care and compliance with safeguards. Protection from all risk was not required. The certain and serious losses of removal were weighed against harm that might occur, without compelling justification for the care plan.
6. It was procedurally unfair for the local authority to rely on disputed allegations concerning the uncle after he was not made a party, his statement was not challenged and no findings were sought against him. The local authority’s conduct after the care orders, including abrupt removal and reduced contact during the appeal, was strongly criticised but did not itself determine the merits.

• Court of Appeal (Civil Division): Appeal allowed: [2025] EWCA Civ 1368. The care orders made on 5 June 2025 were discharged; supervision orders were substituted, interim child arrangements orders restored, and the special guardianship applications remitted.
• Family Court at East London: Recorder Youdan made care orders for all three children on 5 June 2025, holding that long-term foster care was necessary and proportionate.