T (Children: Risk Assessment)

A court may separate a child from the family only after rigorous and adequately explained reasoning. It must identify the type, likelihood and consequences of possible harm; assess whether the risk can be managed; consider all other welfare factors; compare the realistic plans; and determine whether any interference with Article 8 rights is necessary and proportionate.

Risk assessment concerns the realistic assessment of risk, rather than the elimination of every risk. Actual or likely harm is only one element of the wider welfare assessment. A failure to undertake this structured analysis may invalidate care and placement orders.

Three brothers were removed from their parents and placed together in foster care. The Family Court made final care orders for all three children and a placement order authorising an adoptive placement for the youngest. The principal identified risk arose from a serious injury sustained by one brother as a baby in 2015, which an earlier court had found was caused by the mother.

The parents appealed. They argued that the judge had not identified the nature and degree of risk to each child, considered risk management, applied the statutory welfare checklists, compared the realistic alternatives, or assessed proportionality. The central issue was whether the reasoning provided a sufficient risk and welfare assessment to justify the children’s continued separation from their parents and the possible adoption of the youngest child.

1. The appeals were allowed. The care orders and placement order were set aside, the interim care orders revived, and the local authority’s applications were remitted for expedited redetermination. Peter Jackson LJ gave the judgment, with which Males and Moylan LJJ agreed.

2. The separation of a child from the family can be approved only after rigorous reasoning. This applies with particular force to adoption, but also to any significant welfare decision whose outcome is not obvious. A specialist judge’s familiarity with the governing principles does not remove the duty to explain and justify the decision.

3. Under section 31(9) of the Children Act 1989, the court must distinguish the threshold concept of significant harm from harm considered within the wider welfare assessment. For each child, the court must address: the type of harm that has arisen or might arise; its likelihood; its possible consequences; the extent to which the risk can be reduced or managed; other welfare considerations; which realistic plan best promotes welfare; and whether any resulting interference with Article 8 rights is necessary and proportionate. This approach reflected Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60 and the guidance in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761.

4. The analysis may be concise but must be structured and adapted to the individual case. Risk assessment requires a realistic appraisal, not the elimination of all risk. Actual or likely harm is not equivalent to an all-round welfare assessment, and undue weight must not be given to one factor at the expense of others.

5. The Family Court’s concluding reasoning did not justify the far-reaching orders. It contained no effective risk assessment and therefore no proper welfare evaluation, comparison of the options, or proportionality assessment. Material matters requiring examination on rehearing included the age and circumstances of the historic injury, the absence of later harm in parental care, the possibility of managing any risk, the children’s experience in foster care, sibling relationships, and the viability and consequences of the proposed long-term plans.

1. Court of Appeal (Civil Division): The parents’ appeal was allowed. The final care orders and placement order were set aside, the interim care orders revived, and the applications remitted for an expedited rehearing: [2025] EWCA Civ 93.

2. Family Court at Manchester: Her Honour Judge Tyler made final care orders for all three children and a placement order for the youngest child. The judgment’s inadequate risk, welfare and proportionality analysis could not sustain those orders.