M (Care Order: Risk: Family Placement), Re

In care proceedings, a court assessing future risk must conduct a structured and realistic evaluation. It must identify the harm, its likelihood and consequences; examine available mitigation and support; compare each realistic placement; consider the full welfare checklist; and test any interference with Article 8 rights for necessity and proportionality. Risk assessment is not an exercise in eliminating every risk. Removal from a parent requires a high degree of justification. Where a non-parent family placement is proposed, the court should ordinarily undertake a genuine side-by-side comparison and, where suitability is disputed, consider direct evidence from the proposed carers. Expert evidence must remain within its proper field and must not eclipse other welfare factors.

M was an infant living with her mother. Her father, a convicted sex offender, had been excluded from the home and had supervised contact. The local authority issued care proceedings under Part IV of the Children Act 1989; the threshold was conceded. HHJ Bugeja made a care order approving M’s removal from her mother to her paternal grandparents. The mother appealed, supported by the father and the Children’s Guardian. The appeal concerned risk assessment, mitigation, comparative placement analysis, proportionality, the welfare checklist and the weight given to expert evidence, including whether M could remain safely with her mother under a care or supervision order.

Disposition. Cobb J gave the judgment, with which Dingemans LJ and Arnold LJ agreed. The appeal was allowed. The care order was set aside, replaced by an interim care order supported by an order under section 38A of the Children Act 1989, and the case was remitted for case management and possible rehearing.

1. The judge correctly identified the father as presenting a significant risk of sexual harm. However, the risk analysis was incomplete. The structured questions reproduced from Re T [2025] EWCA Civ 93 required consideration of the type and likelihood of harm, its consequences, available mitigation, other welfare factors, the realistic plans and Article 8 necessity and proportionality. Risk assessment concerned the realistic assessment of risk, not the elimination of every risk.
2. The judge failed to analyse the effective protective arrangements already operating, the proposed shadow care plan, the mother’s changed position, the period of several years before the identified risk was likely to arise, and the availability of therapy and continuing monitoring. It was inconsistent to rule out mitigation and then identify conditions under which M could safely remain with her mother without allowing those conditions to be tested. The court also applied the real-world consequences approach in Re L-G [2025] EWCA Civ 60 and held that the judge could not properly conclude that there was a likelihood of harm in the sense of a real possibility: Re S-B [2009] UKSC 17.
3. Where two prospective family placements are advanced, a genuine side-by-side analysis of their advantages and disadvantages is required: Re H-W [2022] UKSC 17 and Re N [2024] EWCA Civ 938. Direct evidence from proposed family carers is not mandatory in every case, but where their insight or suitability is questioned it may be necessary for a fair and informed comparison. The absence of evidence from the grandparents created a procedural imbalance.
4. There is no statutory presumption favouring parental placement once the threshold is crossed, but removal from a parent requires a high degree of justification and must be necessary and proportionate: Re H (A Child) (Appeal) [2015] EWCA Civ 1284 and Re G [2006] UKHL 43. The judge underweighted the likely emotional effect of removal, M’s background and attachment, and the comparative capability of the mother and grandparents under section 1(3) of the Children Act 1989.
5. The judge allowed the expert evidence to dominate the welfare evaluation and relied on opinions outside the expert’s demonstrated field. She also gave insufficient attention to the principle that lies matter only insofar as they affect welfare or undermine protective systems: Re F [2018] EWCA Civ 2762 and Re A [2015] EWFC 11.

The appellate court was not able to make the welfare decision itself. The case was therefore remitted, with the local authority directed to file an updated assessment and outline long-term placement proposals.

1. Court of Appeal (Civil Division): Appeal allowed. The care order was set aside and replaced by an interim care order supported by an order under section 38A of the Children Act 1989. The case was remitted to the Family Court at Wolverhampton for case management and possible rehearing.
2. Family Court sitting at Wolverhampton: HHJ Bugeja made a full care order approving a plan to remove M from her mother and place her with her paternal grandparents.