K-H (Children)(Care Orders: Proportionality) [2025] EWCA Civ 1368 (29 October 2025)

Neutral Citation Number: [2025] EWCA Civ 1368 Case No: CA-2025-001564 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE FAMILY COURT AT EAST LONDON Recorder Youdan ZE22C50469 Royal Courts of Justice Strand, London, WC2A 2LL 29 October 2025 B e f o r e : LORD JUSTICE PETER JACKSON LORD JUSTICE COULSON and LADY JUSTICE ELISABETH LAING ____________________ K-H (Children)(Care Orders: Proportionality) ____________________ Denise Gilling KC and Clive Redley (instructed by Edward Oliver & Bellis) for the Appellants, the Paternal Grandparents Christopher Poole (instructed by London Borough of Waltham Forest) for the Respondent Local Authority Will Tyler KC and Xenia Stavrou (instructed by Myria Pieri & Co) for the Respondent Children through their Children's Guardian The Respondent Father appeared in person The Respondent Mother was not present or represented Hearing date: 13 October 2025 ____________________ HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © This judgment was handed down remotely at 10.30am on 29 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Lord Justice Peter Jackson: Summary This appeal concerns three children: R (a boy aged 8), S (a girl aged 6) and L (a boy aged 5). On 5 June 2025 they were made the subject of care orders after proceedings that had begun in December 2022 and continued for five times the statutory 26 week maximum. Throughout that time, they lived with their paternal grandparents, having been placed there in July 2022 with the agreement of their parents, who had caused them significant harm through drug and alcohol abuse, domestic violence and neglect. After this shaky start to life, the children had made good progress with their grandparents and became thoroughly settled over the course of almost three years. There was no suggestion that any of the children had suffered any harm in the grandparents' care, nor indeed that the grandparents had ever mistreated their own three children, the eldest being the children's father. Nevertheless, the court, acting on professional advice, found it necessary for the children to be removed into long-term foster care because of the risk of future sexual harm from the grandfather or from an uncle, the father's younger brother, who lived in the home until March 2025. In making this case, the local authority relied on three convictions for sexual offences recorded against the grandfather in the period 1975-1984, when he was aged between 14 and 22, and two sexual incidents involving the uncle, the first in 2007, when he was aged 11, and the second in 2015, when he was aged 20. Those matters were not disputed by the uncle. However, although it made no findings of fact about them, the court also relied on six other disputed allegations made against the uncle in the period 2006-2013 and on four reports of sexualised behaviour by the eldest child at school in 2023/2024. For the reasons given below, that approach to risk assessment was impermissible. More fundamentally, I conclude that the court's welfare assessment was overwhelmed by the issue of risk, and that even if the unproven matters could have been taken into account, the evidence as a whole was incapable of justifying the permanent removal of these children from their family. I would therefore allow the appeal and set aside the care orders. In view of the basis on which the appeal succeeds, no purpose could be served by remitting the application for care orders to the Family Court, and it would be particularly unattractive to do so in a case where there has already been so much delay. I would substitute a supervision order for 12 months as a proportionate response to the overall circumstances. It will enable the local authority to ensure that the children's progress continues and to be alert to any difficulties. If necessary the order can be extended. It was disturbing to learn, mid-way through the appeal hearing, that the children had been removed from the grandparents before the expiry of the appeal period and in the knowledge that the grandparents wished to appeal. Even after permission to appeal was granted, contact was severely reduced. I will say more about this below. I firmly reject the local authority's submission that the children should remain in foster care while any remaining decisions are made. On the contrary, the public law proceedings will now end and the children should return to their grandparents as soon as possible. The private law underpinning for the placement is best resolved by agreement, failing which the court can decide. I would therefore remit the grandparents' application for a special guardianship order to the Family Court and in the meantime restore the interim child arrangements order that had been in force since December 2022. Under that order, the local authority supported the family with a weekly allowance of £144, and unless we are told otherwise, I would expect this to resume pending a final resolution. I appreciate that the closure of the public law proceedings may bring an end to the grandparents' legal aid, but the local authority, which now avoids the higher costs of foster care, will no doubt consider assisting them to obtain any necessary advice to ensure that the proceedings are brought to an early conclusion one way or the other. A brief account of the background The grandfather is now 62 and the grandmother 56. Much of the grandfather's own childhood was spent in residential care, where he was sexually abused by adults for many years. He and the grandmother have been together since 1986 and, as stated, they have had three children of their own. The grandfather acts as carer for the grandmother, who has a number of health conditions that limit her parenting and supervisory abilities. Also resident in the home was the uncle, who is now aged 31. The children's parents came to the attention of the local authority in 2017, due to a history of domestic abuse, substance misuse by both parents, neglect, poor home conditions, and low nursery and school attendance. By 2021 a child protection plan had been put into place, but the parents did not fully engage. During the 2022 summer holiday, two of the children were found walking by a main road, unsupervised and improperly clothed. This was the catalyst for the move to the grandparents' care on 30 July 2022. In September 2022, the parents signed a section 20 agreement with the local authority. An initial viability assessment of the grandparents as long-term carers, completed on 25 October 2022, identified a number of strengths. They engaged well with the local authority and showed a good understanding of the past problems and the children's future needs, including the need for parental contact to be carefully managed. The children had been doing well since their move. As against this, the forensic history of the grandfather and uncle was noted, alongside the grandmother's reduced health, which meant that she was unable to care for the children independently. The assessor concluded that the children's growing demands meant that they would require healthy carers and that further assessment was therefore not considered viable. The concern about health, however, was not pursued as a separate issue by the local authority in the subsequent proceedings, and by the time of the final hearing the grandparents had proved themselves equal to the tasks of practical parenting. Those proceedings began on 8 December 2022. The local authority applied for interim care orders with a plan for placement in foster care, but on reflection it agreed that the children should remain with the grandparents pending further assessment. On 30 December 2022, the court made an interim child arrangements order and an interim supervision order which, in the event, continued for 2½ years. In January 2023, the grandparents and the local authority entered into a Working Together Agreement. This required that the uncle was not to be left alone in the home with the children, but he could take them into the community. It did not prohibit the grandfather from undertaking the children's personal care. The court duly authorised a series of assessments, to which I will return. In April 2024, when these were negative from the grandparents' point of view, the local authority again applied for an interim care order with a plan for removal, but again withdrew the application after the Children's Guardian supported the children remaining in the home with constant supervision. At that point, a second Working Together Agreement was made. This restricted the grandfather and the uncle from undertaking personal care of the children. There was no breach of that agreement. By this time, the local authority had introduced a Family Support Worker who visited for several hours a day in the morning and afternoon/evening. Her report was extremely positive about the care being provided to the children and about adherence to safety planning, with the grandmother managing the children's personal care well, and appropriate changes having been promptly made to sleeping arrangements in the crowded family home. The local authority also put in support from Tracey Goddard, lead social worker for Harmful Sexual Behaviour, after concerns about R's behaviour at school. Her involvement spanned the period between June 2024 and February 2025, when she reported that the grandparents and uncle had actively engaged in safety planning, had shown willingness to learn and take on board advice, and were keen to undertake any further work that was considered necessary. The children's parents had separated in September 2023 and neither put themselves forward to care for the children. The mother was unable to engage with the proceedings due to her substance misuse and poor mental health. By the time of the final hearing, she had not seen the children for more than a year. The father's continued substance abuse meant that he was unable to care for the children, but he maintained contact with them and took part in the proceedings in support of his parents. The sexual convictions and allegations The grandfather's convictions for sexual offences were: (1) 1975 – indecent assault by the grandfather and his brother on two 9-year-old boys and possessing an offensive weapon in a public place. The grandfather was aged 14 at the time of the offences. (2) 1978 – an indecent assault on a female (age not specified). The grandfather was aged 17 at the time of the offence. He was sent for Borstal training. (3) 1984 – an indecent assault on a male under 14 (the victim was aged 10). The grandfather was aged 22 at the time of the offences. He was sentenced to imprisonment for 9 months. The uncle has no criminal convictions or cautions, but these matters were recorded about him: (1) 2011 – an allegation by the parent of a female cousin aged 5 or 6 that he and another 12-year-old boy had engaged in abusive sexual activity with that child and her sister in 2006. The uncle denied it and no charges were brought. (2) 2007 – the brother of the above child alleged the uncle had kissed him and attempted to sexually assault him on more than one occasion. (3) The uncle told Dr Shaun Parsons, the psychologist reporting to the court, that he had touched a boy inappropriately when he was aged 11. (4) 2009 – when the uncle was 14, his school reported that he was making increasingly sexualised comments over a period of months, including a reference to sucking his dad's penis. (5) 2010 – the school reported that the uncle had touched a disabled 12-year-old boy's penis in the toilets. (6) At the same time, the school reported that he had touched a non-verbal female student and had been excluded for bringing a knife into the school. (7) 2015 – a former girlfriend reported that the uncle had raped her in 2013, when she was over 16. The uncle denied it and text messages appeared to substantiate his denial. (8) At the same time, a police report concerned unlawful sexual intercourse with the ex-girlfriend when she was aged 15 and the uncle was aged 19 or 20. The uncle said that he believed she was 16 and that they did not have sex again until she was. They then had a relationship for several years, which included the uncle living with her in her parents' home. The uncle accordingly accepted the matters listed at (3) and (8), but denied the other matters. In respect of R, these matters were recorded: (1) December 2023 – the school reported a safeguarding concern that a fellow student had reported to his mother that R had licked the child's penis. R denied any such incident, but said that there had been a group of children in the toilets. (2) February 2024 – the school recorded that a fellow student had told their parent that R had asked them to lick his penis in the toilets. There was an issue, which was not resolved, about whether these two records referred to the same event. (3) April 2024 – the school recorded that R had kissed another child. (4) May 2024 – the school recorded a concern about a noise made by R in a phonics lesson sounding as if it had sexual undertones. There were no other reports from R's school before or after this six-month period. Expert assessments In March 2023, Dr Parsons undertook forensic psychology assessments of the grandfather and uncle. In respect of the grandfather, he could not entirely rule out the possibility of deviant sexual interest in pubescent males being present, but he assessed the level of risk of sexual harm posed to children generally as 'very low'. He considered it prudent that the grandfather did not undertake any intimate care of the children. As for the uncle, Dr Parsons' ultimate conclusion in June 2023 was that it was important to note that he had no convictions for sexual offences and that, while he could not rule out the possibility of adult sexual risk, if it did exist it was 'very low'. In September 2023, the local authority filed its special guardianship report, principally authored by Liselle Harold, an independent social worker. Considerable strengths were noted. The couple had been cooperative, and had used outside resources well to meet the needs of three lively children. The family was a close one and the children were being provided with warmth and affection. However, a comprehensive risk assessment was necessary to consider measures to mitigate risk before a final recommendation could be made. That assessment was carried out by an independent social worker, Ms Rachel Sensicle, who interviewed both grandparents and the uncle and reported in March 2024. In her reports, which occupy 120 pages, she assessed the grandfather as posing a 'low' risk of sexual harm, but she assessed the risk as increasing to 'low-medium' as a result of him being a carer for the children, due to the opportunity to offend. She assessed the uncle as typically posing a 'low' risk of sexual harm to children, but considered that having unsupervised access to the children increased that risk to 'low-medium'. She noted that there had not been a fact-finding hearing in relation to the allegations that the uncle denied. In regard to the grandmother, Ms Sensicle expressed concern about her inability to make choices that benefitted her health. In March 2024, having seen Ms Sensicle's reports, Ms Harold completed her special guardianship assessment. She considered that there was "sufficient information to raise concern" regarding the grandparents' capacity to safeguard the children and meet their care needs in the long term. She agreed with Ms Sensicle that it was "not defensible to ignore the level of risk based on known information". She was "also mindful that there are usually many unknowns in relation to sexual abuse risks within families". She was not able to recommend that the children remain in the care of the grandparents. Dr Parsons was asked to consider the level of risk identified by Ms Sensicle. He did not disagree, noting that she had had access to wider information. In her evidence, the children's social worker acknowledged the positives within the children's placement with their grandparents. She confirmed that the children were happy and spoke positively about their grandparents, and that the family had engaged well with the support that the local authority had put in place. The children were clean and well presented, and were being supported to have a positive relationship with their father. Their school attendance was good and there had been no recurrence of the reported incidents involving R. The uncle had moved out of the home. Nevertheless, the final care plans had not changed. The social worker agreed with Ms Sensicle about the risks to the children remaining with the grandparents. The uncle's move did not reduce the risks because he continued to spend time in the grandparents' home and with the children. The plan was for removal into foster care even though a placement had not yet been identified. The Children's Guardian similarly acknowledged that the children's basic care needs were being met by their grandparents and that the children were happy and doing well. However, she was not reassured that they would have the capacity to protect and keep the children "100% safe". She referred to "patterns of repeated behaviour in the generations". She described the decision as a very difficult one as the children had been with the grandparents for a long time, but she felt that the current safeguards could not be sustained and that there was nothing that would keep the children safe in the long term. Only 24-hour support in the home could fully prevent the children from being exposed to sexual risk. She therefore supported the care plan, but recommended monthly contact in place of the original care plan for contact to be every two months. The final hearing This summary shows that the issue for the court was clear and relatively narrow. Unfortunately there was no judicial continuity, and the matter came before a variety of District Judges and Recorders. Eventually, at a pre-trial review on 13 February 2025, a direction was given for the final hearing to take place in late March with a lengthy time estimate of five days. Specific attention was given to the position of the uncle, who was not a party, and the order contained this recital (in all direct quotes I have anonymised the family members): "AND UPON the Court considering it not necessary for the uncle to participate in the final hearing (as an intervenor or otherwise, save if there is an application for him to be called as a witness following receipt of his statement to be filed on behalf of the grandparents, if so advised), in the absence of the Local Authority seeking specific findings against him, noting that his underlying position/views have been clearly recorded in the assessments of him and which can be put to relevant witnesses via the Paternal Grandparents regarding risk in the household generally." The grandparents subsequently filed a statement by the uncle and, as anticipated by the recital, it was not challenged and he was not called as a witness. That was the position when the matter first came before Recorder Youdan on 24 March 2025. By this time the bundle exceeded 2000 pages. Oral evidence was given by Ms Harold, by Ms Sensicle and by the social worker, whose evidence had to be paused on the third day of the hearing due to personal reasons. The hearing resumed on 2 June to complete her evidence and the court then heard from the father, the grandparents and the Guardian. Having heard submissions, the recorder delivered a written judgment on 5 June 2025. The hearing therefore lasted no less than seven days, a surprising length of time for such a clearly-defined issue. The judgment The recorder approached her task methodically in a 50-page prepared judgment. Having set the scene and recorded the parties' positions, she referred briefly to the law governing the making of a care order. She noted that the threshold was crossed on the basis of the parents' actions and remarked that the focus on the hearing was therefore entirely on the welfare of the children. She directed herself that a care order should be an order of last resort even though this placement was with grandparents and not parents. She reminded herself of the family's Article 8 rights, which required that any interference must be both necessary and proportionate. The recorder then summarised the sexual convictions and allegations, the assessments, and the oral evidence of each witness, one by one. During that survey, these points were made in respect of Ms Sensicle's evidence: (1) Ms Sensicle said that what the family had done over the last year had increased the effectiveness of the management of risk, and that this could be improved further if the uncle moved out of the home and his contact were to become supervised. However, she was very concerned about the "minor issues" with R, which were similar to those in relation to the uncle and raised "serious questions within the home about why" (judgment paragraph 48). Further: "49. Ms Sensicle was clear that she was not saying the grandfather sexually abused his children or R, but in an environment when there are considerable concerns about his sexual behaviour partially due to a horrific childhood that contributed to that, but because through the generations there is something within the household; exposure to minor stuff or sexual boundaries, but we don't know what that is. That is important and why she cannot not lower the risk factors. 50. Ms Sensicle confirmed that she had been very concerned about R's behaviour at school and whilst children often display some sexualised behaviour, how R presented is much less common and to explicitly refer to licking someone's penis. Ms Sensicle was clear she is not saying whether this did or did not happen, but that if it did this is significant behaviour for a child of R's age and would be indicative of sexual harm in some way as a child of that age would not have knowledge of this. When I asked, Ms Sensicle said that R could have seen or witnessed something at some point in his life in either the grandparents or parents care or at school. However, typically children tend to display behaviour soon after the experience and repeat quickly what they have seen due to memory and age. It would likely be a more recent experience than historic." (2) However, the recorder observed in the next paragraph: "51. To be clear, I have not been asked by the Local Authority to make findings about R's behaviour at school and when R was asked about this, he denied behaviour in the way that was alleged. However, the concerns about R's behaviour are part of the overall picture in this case and cannot be ignored when I think about what is in the welfare interests of the children." (3) Ms Sensicle considered that the removal of the children would be "traumatic and a dreadful situation" but that it had been a significant mistake to place them with the grandparents before assessments were obtained. The risk in the home was "too much" (paras. 56-57). Against that background, the recorder made her welfare analysis and decision over the course of a further fourteen pages. At the outset, she commended the parents for acknowledging the harm the children had suffered and for putting their needs first. The recorder then addressed the welfare checklist factors in the following terms. All the children spoke fondly and positively about living with their grandparents, to whom they have a strong attachment. 2 years and 10 months was a significant length of time in the lives of young children. They were happy and settled and would want to remain. Their wishes could not be the determining factor but it formed an important part of the welfare assessment. The children's behaviour had significantly improved in the grandparents' care over this period. They were all at the same school with good attendance, home support and engagement between home and school. "118. The grandparents have done their best to provide the children with a nurturing and loving environment and this has shown in the improvements that the children have made. It is accepted by all the professionals and I agree that they will continue to provide this level of care for the children and are open and willing to engage with external support to help the children continue to progress in the way that they should." In the following paragraph, the recorder nevertheless wrote that it was important for the local authority to identify an experienced foster carer, who understands that the children have additional needs and will need to continue to be robustly supported to ensure that they can continue to improve and reach their full potential. That appears to have been written before the local authority had identified a foster carer, something that happened at a very late stage. They then proposed to place these white British children with a British Asian Muslim couple, living in an 8-bedroom house in East London with their own children, aged 10, 8 and one month. The recorder observed that it may be daunting to them to be with a family of a different ethnicity and culture and lead them to feel that they stand out. However, the Guardian had confirmed that she was satisfied with the placement and noted that many foster placements succeed even though they are not culturally matched. The recorder accepted that the change for the children would be significant. She noted that the father used the word 'destroyed' to describe the impact of removal and she accepted that it would be distressing and traumatic to move to the care of a stranger from grandparents whom they love dearly. She further noted the grandmother's concern that children who had already lost their mother and, to an extent, their father, would now lose their grandparents as well. The grandmother also expressed concern that the children would revert to their previous behaviours if they had to move into foster care, undoing all the progress that they have made. As to that, the recorder said: "On the other hand, the positive support that the grandparents have given the children over the years and the progress that they have made, may mitigate to an extent the impact of any move on the capacity to manage and process this. I cannot say, but what is apparent is that the children will need significant support to understand, process and manage any move." (paragraph 123) The recorder referred to the disadvantages of foster care. Foster placements may break down for one or all of the children, leading them to experience multiple moves and changes throughout their childhoods. It cannot be guaranteed that the children could be kept together. The children would also have a 'corporate parent' for the rest of their minority, which can be intrusive as they get older and lead them to stand out amongst their peers. The recorder also accepted that the prospect of a change of school represented a significant change, primarily because the children were settled at their current school, which had a really good understanding of them and their needs. Overall, she accepted that a change of placement and a change of school would represent a very significant change for the children and one that would cause them a high level of disruption. The recorder then considered the issue of risk. I extract these passages: "135. The primary focus of this Judgement and this hearing has been around the risk of harm arising from the previous convictions of the grandfather and the behaviour of the uncle." "141. … I share the views of Ms Sensicle and the Guardian that it is extremely worrying that not one, but now three generations of the same family have had concerns raised about inappropriate sexual behaviour. 142. I accept that the grandparents have complied with written agreements around care arrangements with the home for the children, that they have cooperated with the Family Support Worker visits and engaged well with Ms Goddard. Since Ms Sensicle gave her evidence, the uncle has also moved out of the family home. All of this is positive in terms of risk management. 143. However, I am concerned that the grandparents, despite extensive evidence of the concerns and views of the professionals have not shown a great deal of their own initiative in taking protective steps and are overly reliant on being told what to do." "146. It is clear that the uncle does continue to play a significant role in supporting his parents care for the children, indeed as he always has. However, what was of concern to this Court was that despite the clear concerns expressed about the risks from the grandfather and the uncle, these two adults have been left alone with the children by the grandmother. How can she protect the children if she is not there to oversee where they are and what they are doing. She is reliant on what the grandfather and the uncle say that they are doing. 147. I must be clear I am not suggesting that anything has happened to the children during this time, but the point is that it increases the risks, it does not decrease them. I am concerned that in allowing this to happen the grandparents have demonstrated to this Court that they do not fully understand the concerns and have insight into these. 148. I cannot with confidence accept the assertion that the uncle moving out of the home removes that risk, because he continues to play a significant role in the lives of the children. 149. … In any event the grandparents were in Court to hear the evidence of Ms Sensicle and needed to demonstrate to this Court that they can come up with safety strategies themselves without reliance always on being told what to do. 150. If I make a special guardianship order, the grandparents gain enhanced parental responsibility. On making such an Order, I would expect the grandparents to be able to make decisions and act protectively for the children on their own. The Local Authority cannot be in the background for the rest of the children's minority to tell the grandparents what they can and cannot do. 151. In respect of the grandfather, I accept that he has not offended since his convictions nor have any concerns been raised about inappropriate behaviour by him towards any child. Dr Parsons confirming that this reduces the risk. This was acknowledged by Ms Sensicle as well, albeit she highlights that the children being in his care brings the risk to low-medium. 152. One then must turn to consider the grandparents' understanding and insight into the risk that the grandfather, (and uncle) pose and how this sits with protective capacity and risk management. 153. During these proceedings the risks have been managed, but with a high degree of monitoring, certainly since the Family Support Workers were put in place and the scrutiny of the Court. However, as I set out above, there have been concerns around R's behaviour, which I do consider to be significant and very concerning in the context of the family's background. 154. I do agree with the evidence of Ms Sensicle that without insight, the grandparents cannot act protectively. I also agree with the Guardian that having listened to the evidence of the father and the grandparents, I was not left reassured that there has been any change in that regard and in particular from the grandmother, who would be the adult in the home with primary responsibility to protect. The grandmother said that she did not understand what the risk was from the grandfather and did not agree that the uncle was a risk." As to parenting capacity, the recorder considered the mother's difficulties and then said this of the father and grandparents: "157. The father has demonstrated in contact that he can meet the children's needs well during contact and he makes family time an enjoyable experience for them. The father also acknowledges that he is not able to care for the children full time, which is to his credit, but clearly, he has an important role to play in their lives. 158. No-one has sought to argue that the grandparents have not met the needs of the children to a high standard. They certainly have. The grandparents have given the children stability, consistency, love and nurture. They have cooperated with the Local Authority and the support that has been put in place." Finally, under the welfare checklist, the recorder looked at the range of orders and the realistic options: "159. … these would be to make Special Guardianship Orders, with, if necessary, a Supervision Order if I felt the circumstances of this case met the exceptional test. In the alternative, I make a Care Order approving the Local Authority care plan. I cannot instead make a Care Order with the children in the grandparents' care, because I cannot tell the Local Authority what their care plan should be, what would be open to me would be to refuse the Care Order on the current care plan and place pressure on the Local Authority to consider a Care Order at home, but if they refuse it becomes stalemate. In any event, I consider it would be unlikely that given the facts of this case the grandparents would be approved under the placement regulations for a Care Order at home. The law is also clear that Care Orders should not be made with children at home to provide monitoring and support." The recorder then moved to give her decision, and again it is necessary to set out a large part of her reasoning. "160. This case has never been about the grandparents' basic parenting capacity. It is about the risk of sexual harm to the children due to generational concerns around sexual abuse of children and inappropriate sexual behaviour and boundaries and the capacity to protect. 161. The question then becomes can this risk be mitigated enough for it [to] be safe for the children to remain in the care of their grandparents or can that risk not [be] managed such that the only placement that will keep the children safe is long term foster care. 162. The loss to the children of being removed from the home where they have lived for over 2 years and from their grandparents, with whom they are significantly attached is a significant factor that must be weighed into the balance of harm. 163. What has also weighed heavily is the potential instability of long-term foster care, particularly the potential for sibling separation and the children having the Local Authority as their corporate parent for the remainder of their minority. The children remaining together is important as they are close and will be there to support one another as they grow up around their shared experiences. 164. However, I must also balance the risks of sexual harm that have been identified and the obvious harm that would occur to the children if they remain in a placement where they are not kept safe and exposed to sexually harmful behaviour. Ms Stavrou [Counsel for the Guardian] summed this up well when she used the word 'catastrophic'." "166. For the most part, the children's placement with the grandparents has not resulted in concerns being raised for the children's welfare day to day. However, it would be disingenuous to say that there have been no concerns, as there have been for R. Ms Sensicle's evidence about this was compelling when she expressed concern that [in] R a 3 rd generation of the family has displayed sexualised behaviour, where is this coming from and is there something within the household? As I have already said, this cannot be ignored. 167. There have been no concerns raised about R continuing to show sexualised behaviour since May 2024, but since the written agreement in May 2024 and implementation of family support workers twice a day, including weekends and holidays there has been a high level of monitoring." "171. Where I find that I must also place weight on Ms Sensicle's assessment is that her views around insight and understanding of risk by the family is shared by Ms Harold and the Guardian and having read the evidence and heard from the father and the grandparents is shared by this Court. 172. So can these risks be managed? A starting point for this must be that the risks are understood and accepted. That there is insight and not minimisation. Sadly, this continues to be lacking from the adults in the family that would be responsible for protecting the children, particularly the grandmother. 173. Had I been reassured from hearing from the grandparents and the father regarding their insight and understanding of the concerns, I may have been more persuaded that the risks could be safely managed and without the need for extensive oversight and monitoring by the Local Authority, (24/7 as the Guardian put it). The grandparents minimised the risks from the grandfather or played it down and the grandmother told me she did not understand what the risk was. Both grandparents presented very much that the uncle is not a risk. The father spoke often about the 'perception of risk' but that this is minimal and procedures and rules will make this risk non-existent. That is not the evidence of the professionals. 174. I noted in his letter Dr Parsons talks about denial and minimisation. He states "I can confirm that in my opinion that denial and minimisation do not increase risk, but it does make it difficult to work with an individual in an open, honest and constructive way in order to manage, and in this case, understand risk does remain my opinion. I must stress that even if denial and minimisation were not present, it would never be possible to state that an individual who has allegedly engaged in concerning sexual behaviour in the past, and indeed who has engaged in the past, would not pose a sexual risk in the future. Denial and minimisation simply make this uncertainty greater". 175. I am concerned that because there has been a heavy reliance on professionals to put in place rules and restrictions, rather than the family thinking what might be necessary, that alongside the lack of insight that once the scrutiny of the Court and the local Authority falls away, there will be a lapse of protective measures particularly if there is a general feeling that these are not necessary because the risks is very low or non-existent. Ms Sensicle explained that insight is significant as is the ability to maintain this over time as families move on and relax into daily life, matters then get forgotten. It could be predicted that over time during the children's childhood insight would deteriorate again so if the children are being left at home the risk needs to be so low that it would be okay. 176. I have said that I accept Ms Sensicle's assessment that the risks in this case are low to medium and not very low. 177. I commend the grandmother for taking steps to address the concerns around her health and doing so is of clear benefit for the children. But it seems clear that she still needs a lot of support from the grandfather and the uncle, especially outside of the home, which by her own admission has left the children alone unsupervised with two adults that have been assessed as posing a risk." "180. Any professional monitoring and support that could be put in place would have to be of a high level, akin to constant supervision. This is not realistic nor is it sustainable long term. The current level of family support work cannot be sustained in the longer term. The grandmother is going to have to take primary responsibility to protect and to do this she needed to have a better understanding of the risk and insight into why the children should not be alone with the grandfather or the uncle. Sadly, this remains lacking. 181. I cannot rely on the children as they get older to raise the alarm if something happened. Children and young people do not always report abuse for lots of reasons. They need the adults around them to be alert and keep them safe. The children also need their carers to teach them about healthy sexual boundaries and I was left very worried about the grandparents' capacity to do this when they gave their evidence about the uncle's sexual relationship with a 15-year-old… 182. A supervision order, alongside a special guardianship order or a child in need plan and written agreements would not in my view sufficiently mitigate the risks in this case. [There] will be limits to the level of monitoring and support that can be provided and because insight into the risks is lacking, the gaps not met by monitoring and support cannot be filled. Just following rules and boundaries is not enough if you don't understand the reasons for this and as special guardians the grandparents need to be able recognise, accept and manage risk themselves. 183. Ms Sensicle did make therapy recommendations. However, she also said that there was no guarantee that therapy would be successful and, in any event, despite the steps taken by the family to manage the risks she could not see a scenario where it would be safe for the children to remain in their grandparents' care. 184. Dr Parsons made no recommendations for psychological therapy. 185. There are a huge number of positives in this case with the care that the grandparents have provided to the children, but all aspects of the children's welfare now and throughout their childhood mean that I cannot ignore the expert assessments, the majority of which reach the same conclusion that the children cannot be kept safe in their grandparents' care. 186. For all the reasons set out in this Judgement it is with heavy heart that I must conclude that the only placement that will ensure that the children are kept safe from the risk of sexual harm now and throughout their minority is a placement in foster care. 187. I acknowledge the family's concern about the proposed foster placement, but in reality, it may be hard for the family to accept any placement as being suitable. I have found [the social worker] to have a good understand[ing] of the children's needs and I am satisfied that she would not agree a placement that was not appropriate. Likewise, Ms [B] is an experienced Guardian, who has considered the placement proposed carefully. 188. My decision will be devastating for the children and they will suffer a huge loss by moving from the care of their grandparents to a placement with people they do not know and who are different from them. However, the harm that could occur by remaining in a placement that is not safe from the risks that have been clearly identified outweighs this. 189. The impact of a move into foster care and loss to the children can be mitigated against with sensitive and careful support. The risks within their current home cannot for the reasons I have said, be mitigated safely enough. On the evidence that I have read and heard on that I agree with Ms Sensicle, Ms Harold and the Guardian. 190. I therefore make Care Orders for all three children. 191. The making of Care Orders being a necessary and proportionate interference with the article 8 rights of the children and the family. 192. In respect of contact, it is so very important for the children that they continue to have contact with their grandparents and their father. A move to foster care will be hugely disruptive for the children and they do need to be given the space to adjust to the changes that will be made and settle. I therefore consider that as a starting point, and it is just that, that contact 12 x per year is appropriate. This must be kept under review and adjusted in line with the children's best interests. 193. I do consider it in the children's best interests to be able to have separate contacts with their father and grandparents as well as contact as a family and that contact is not restricted to a contact centre and can include community activities, which will make the time more enjoyable for the children. 194. Contact must be supervised at this time due to the risks, but this can also be kept under review. 195. I hope in time that the mother can reestablish her relationship with the children as they clearly miss her. However, I agree that the mother's contact would need to be subject to a risk assessment and the mother demonstrates commitment before this is considered. 196. I know that the grandparents and the parents will be devastated by my decision, but I know that they will do their best to support the children with any transition. You remain an extremely important part of the children's lives and always will." Events since the order of 5 June Although the grandparents were legally represented at the hearing, they took no immediate steps to seek a stay of the order. As a matter of law, there was accordingly nothing at that stage to prevent the local authority from moving to implement its care plan. However, that process immediately became fraught with difficulty. On 12 June, it wrote to inform the parties that the long term foster carers identified in the judgment had changed their minds and that (contrary to what the social worker had been told during the hearing) were now only offering an emergency 7 day placement. They were not happy that the children had run around their home on an introductory visit, something the social worker considered to be normal. On 13 June, the local authority solicitor informed the parties' solicitors that another placement had been identified in a neighbouring borough, and that the children could potentially move on 17 June. On 16 June, and twice thereafter, the recorder was informed as a matter of courtesy about what was taking place. The children did not move on 17 June because the social worker had not yet visited the proposed foster home. On 18 June at 12.12 the solicitors for the grandparents emailed the local authority solicitor saying that they now represented the grandparents as well as the father, that the grandparents now intended to apply for permission to appeal from the care order, and that counsel was in the process of drafting papers. Despite this, no request was made for the removal to be paused, and no application was made to this court for an urgent stay. Instead it was noted that the social worker had told the grandparents that the move would take place that day, and an assurance was sought that the children would not be moved before proper introductions had taken place. At 13.21, the Guardian's solicitor wrote that the Guardian, who had just returned from leave, was concerned at the plan to remove the children from school that day and place them with foster carers without any of the introduction or preparation work that the social work team had told the court would happen. The local authority solicitor replied at 15.08 saying that she had spoken to the social worker and team manager and that they awaited sight of the asserted error of procedure or law. The message contained a statement (in bold type) that " The LA will now effect the delayed move to foster placement today. " So it was that on 18 June 2025, the children were moved without introductions to a substitute foster home in the face of a proposed in-time appeal. On 26 June 2025, the grandparents' Appellant's notice was finally lodged with this court. It contained no request for a stay or for an urgent hearing. It was sealed on 1 July and served on the parties on 2 July. It was accompanied by grounds of appeal and a skeleton argument prepared by Mr Redley, who had acted for the father at trial. In the absence of any indication of urgency, it was referred to me on 16 July and on 18 July I granted permission to appeal, stating that an appeal had a real prospect of success for reasons given in unusual detail: "An appeal would have a real prospect of success. This was a single issue case. Apart from the risk of sexual harm, all other factors strongly pointed against the children's removal. It was therefore important for the court to clearly identify the factual foundations upon which its risk assessment, and that of the expert witnesses, rested. The grandfather's offending dated from 40 years ago. The recorder does not appear to have made any findings of fact about the uncle's past behaviour, he having admitted only one incident when he was aged 11. It is understandable that concern would be felt about other allegations prior to 2015 (see 31(5)), but the court's risk assessment had to be based on proven fact and not on concern or suspicion, even if expressed by experts. It also appears that the recorder impermissibly relied on an allegation about R's behaviour without making any finding of fact about it: 51, 137-141 and 166-167. It is further arguable that the welfare assessment was overwhelmed by a requirement to keep the children '100% safe' (97) and an assumption that foster care is risk-free (161), but welfare decisions do not require the elimination of all risk. Finally, it is arguable that the recorder dismissed the option of a supervision order without fully considering its protective potential in a case where the family had a history of co-operation with professionals." In the meantime, two further significant things were happening, unbeknownst to this court. First, on 2 July 2025, a fortnight after their removal, the children were moved again following an allegation by 5-year-old L (supported by evidence from a family support worker) that the male foster carer had slapped his face. They were then immediately placed with an emergency single foster carer, pending the outcome of an investigation, and they have remained there since. Second, the children did not see their family at all until three weeks after their removal. Contact then took place once a week on four occasions (11, 18 and 25 July and 1 August). Despite the grant of permission to appeal on 18 July, it was then reduced to fortnightly (15 and 29 August) and from September to monthly. I am to a degree sympathetic to the position that the grandparents found themselves in following the recorder's decision. Their legal aid will have expired with the final order and their application was then pursued by their son's legal team. It is nevertheless frustrating that they took no step to seek a stay from the recorder at the time the order was made, or from this court subsequently. Had that been done before the children were removed, a stay would undoubtedly have been granted, sparing the children much disruption. The only saving grace is that they have been able to stay together and to remain in their old school: but that cannot be taken for granted when children are being moved around the care system at speed. I express real concern at the actions that the local authority took once it had been invested with these care orders. Regardless of the merits of any appeal, there was no urgency about the children's move. The abrupt withdrawal of its chosen carers should have taught it the need for caution in executing its care plan, which was for the children to make one move to a home where they would remain for many years. Instead, they were hastily removed from their settled family placement after minimal planning, with a notified attempt to appeal and the advice of the Guardian being brushed aside, and two weeks later that foster placement had also collapsed. Whether or not that was the result of the inadequate planning, the children were then subjected to an emergency move to a third foster home in a third borough. On top of that, the local authority forged ahead with a severe reduction in family contact in the face of the grant of permission to appeal. Again, if this court had been told what was happening, it could and probably would have prevented it. The mishandling of the children's removal has no direct bearing on the merits of the appeal, but it is a powerful illustration of the uncertainties inherent in long term public care, to which the recorder rightly had regard. L's allegation and the grandfather's own childhood experiences should also serve as a strong reminder that foster children are not immune from mistreatment. The appeal The core submission of the grandparents is that a flawed welfare analysis that gave insufficient weight to the positive features of the family placement led to an order that was unnecessary and disproportionate. It is also said that Ms Sensicle's report was flawed in that it relied on unknown and unidentified matters. In response, the local authority, through trial counsel Mr Poole, candidly acknowledged that it had relied only on the core facts of the grandfather's convictions and the uncle's admissions, in combination with the grandmother's limited protective ability, as a basis for its case on the extent of the risks. It argues that these were proper factual foundations for her assessment. There was nothing objectionable in the references to the other complaints against the uncle or to R's behaviour. The recorder was not requiring absolute safety, but rather assessing whether the home placement was safe enough. The family's track record of cooperation had to be seen alongside its lack of insight into risk. The Children's Guardian also defends the judgment. Overall, the recorder took all matters into account. The advantage she enjoyed in hearing the evidence should be considered and this court should not engage in narrow textual analysis. In written submissions, reference was made to Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam) for the proposition that, whilst the court cannot rely on suspicions or concerns, it can look at the totality of the facts in making its assessment. In oral argument, Mr Tyler KC accepted that the recorder did attach some weight and significance to unproved matters. However, relying on R (on the application of Pearce) v Parole Board for England and Wales [2023] UKSC 13 , [2023] AC 807 at paragraphs 61-65, he submitted that she was entitled to do so. When carrying out a risk assessment the court is engaged in a complicated process and is entitled to take into account all relevant facts and circumstances. Not every fact on which a risk assessment is based requires definitive proof before it can be relied upon. The "fact in issue" here was the level of risk. It was therefore permissible for the recorder to rely on "background factors" and "a panoply of sub-facts" when surveying the "wide canvas", such as the matters contested by the uncle and the reports from R's school, when making her welfare assessment. It would take a lot of time if the local authority was required to prove all these facts. In any case the principal pillars of the local authority's case rested on proven facts, but there were also other details that the court could not ignore. The recorder was certainly entitled to be significantly concerned by the reports from R's school. Conclusions Two matters arise. The first concerns the general principles governing judicial risk assessment under the Children Act 1989 and the second relates to the validity of the welfare assessment in the present case. General principles Risk is part of life, and everyone is entitled to choose the level of risk that is acceptable to them. Courts, however, have to adhere to the legal principles governing risk assessment in the context in which they are working. In cases involving children, the principles are well-established by the foundational authorities. They were recently definitively analysed by Baker LJ in Re G (A Child: Scope of Fact-Finding) [2025] EWCA (Civ) 1044 at paragraphs 75-88 . In summary (with emphases supplied): (1) A child is likely to suffer harm if there is a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case: Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563; [1996] 1 FLR 80 , at 585. (2) The same approach is to be taken when assessing the likelihood of harm for the purpose of the s. 31 threshold and when assessing risk under the s.1(3) welfare checklist: Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317 ; [1996] 4 All ER 239 at 246, approved in Re O and N (Minors) (Care: Preliminary Hearing) [2003] UKHL 18 ; [2004] 1 AC 523 ; [2003] 1 FLR 1169 and Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 ; [2009] 1 AC 11 ?. (3) The court's conclusions must be based on facts. Facts are evidence of which a court can be judicially satisfied to the requisite standard of proof. In Re H Lord Nicholls explained this with clarity at 589C under the title "A conclusion based on facts": "The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy. In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established …. At trials … the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past… Then, but only then. can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom. The same, familiar approach is applicable when a court is considering whether the threshold conditions in section 31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide. " At 591F he added: "It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future. " (4) Lest there was any doubt, the position was summarised by Baroness Hale in Re S-B (Children) [2009] UKSC 17 ; [2010] 1 FLR 1161 : "8. The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 . Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, at p 585F). I would further refer to the statements of Munby LJ in Re A (Fact-Finding: Disputed Findings) [2011] EWCA (Civ) 12 , [2011] 1 FLR 1816 at paragraphs 29 and 30. It is therefore unarguably clear that when the court is assessing risk it must act on the basis of proven facts and inferences that can properly be drawn from them. The submission that the assessment of future risk can be based even in part on unproven facts has been repeatedly rejected. The decision in Pearce concerned the interpretation of a different statute in a different context. The decision of Devon County Council v EB (Baker J) confirms that the court can spread its net widely to gather all relevant material, yet cannot base its assessment of risk on unproven facts. I therefore firmly reject the Guardian's legal submission on this appeal. In any case, the "fact in issue" is not the level of risk but the facts that are said to establish the level of risk. The court can, and very often will, refer in its reasoning to evidence about which it has not made a finding of fact, and it will often need to do so in order to make sense of events, but it cannot rely upon such evidence as a basis for assessing risk: Re A (Fact-Finding: Disputed Findings) [2011] EWCA (Civ) 12 ; [2011] 1 FLR 1816 per Munby LJ at paragraph 29. Were it otherwise, the risk of error and injustice would be greatly increased. The demands of child protection are built into a system that operates the balance of probability standard in respect of past events and the real possibility standard in respect of future risks. Past facts must be proved and future risks must be assessed on the basis of the conclusions that can properly be drawn from the proven facts. Orders made by the Family Court are often very serious and it would be quite wrong for these principles to be diluted. The argument that it takes time to prove contested matters is no answer. If evidence is said to justify an order, it needs to be properly assessed. That does not mean that the court is obliged to make findings about every aspect of the evidence. Using its case management powers, it will identify matters that need to be determined and matters that do not. Nor does it have to hear direct or oral evidence about every allegation. Provided a fair process is followed, it can reach a conclusion based on all the available evidence. But it does need to reach a conclusion about evidence if it is going to act upon it. The welfare assessment I turn finally to the decision in the present case. As foreshadowed above, there were in my view two fundamental difficulties with the recorder's analysis and conclusion. The first arises from the legal principles that I have just addressed. Based on the grandfather's convictions and the matters admitted by the uncle, the recorder was entitled to consider that there a risk that could not sensibly be ignored that these adults might cause sexual harm to the children at some point in the future. But that was only the starting point for the risk assessment. She was then obliged to consider the very distant nature of the grandfather's convictions, serious though they were. She also needed to consider the degree of seriousness of the two matters admitted by the uncle, and explain how a single occasion of underage sex with a 15-year-old girlfriend, however deplorable, established risk for these children. Ms Sensicle's approach to risk assessment is not the issue, indeed she showed some awareness of the distinction between matters that had and had not been found as facts. To the extent that she was clearly reaching conclusions based on all the convictions and allegations, she was not constrained by the principles that bound the court. The court, however, was required to observe them. The recorder's approach to the evidence was debated during the appeal. She did not direct herself with reference to the authorities to which I have referred and there is no indication that she observed the legally significant distinction between, on the one hand, suspicions and concerns and, on the other, evidence on which the court is entitled to act. Overall, it is clear to me that she was materially influenced in her assessment by matters that had not been proved or even investigated: (1) At paragraph 135 (see [39] above), she described the primary focus of the judgment and hearing as being about the risk of harm arising from the convictions of the grandfather and the "behaviour" of the uncle. No explicit distinction was made at any point between the behaviour he admitted and the behaviour he denied. (2) Despite being clear at paragraph 51 that she had not been asked to make findings about R's behaviour at school, she considered that the concerns about his behaviour were part of the overall picture and could not be ignored when assessing the three children's welfare: see [31(2)] above. At paragraph 153, she considered the concerns around R's behaviour to be "significant and very concerning in the context of the family's background.": see [39] above. However, although some attention had been paid to the possible source of the behaviour at paragraph 50 (see [31(1)] above), no conclusion was reached about whether it lay within the grandparents' home, as opposed to elsewhere, or at an earlier time. (3) Building on that, the recorder repeatedly adopted the concerns expressed by Ms Sensicle and the Guardian about "patterns of repeated behaviour in the generations": see [27] and [31(1)] above and paragraphs 141 and 166 of the judgment ([39] and [42] above), where she said that she shared "the views of Ms Sensicle and the Guardian that it is extremely worrying that not one, but now three generations of the same family have had concerns raised about inappropriate sexual behaviour" and that sexualised behaviour had been displayed in "a 3 rd generation of the family". For something to be a pattern there has to be a relevant link, but no link was alleged, still less proved, between the grandfather's behaviour and that of the uncle, or between the adults' behaviour and that of R. (4) Instead, the witnesses and the recorder fell back on speculation by asking "where is this coming from and is there something within the household?" No answer was attempted, but the recorder still observed that "As I have already said, this cannot be ignored.": judgment paragraph 166, [42] above. For the reasons given above, that was not a sound approach to risk assessment. As the issue of risk was so central to the welfare evaluation, this error of approach would in itself require the appeal to be allowed. A further distinct error is that in the case of the uncle, the local authority had pinned its colours to the two admitted matters. It was not procedurally fair to the family to rely on the disputed matters after the court had stood him down and his statement had not been challenged. I would, however, allow the appeal on a broader basis that has consequences for the disposal of the appeal. An appeal court is only entitled to interfere with a judge's welfare evaluation in limited circumstances. Amongst these is a situation in which it finds that, giving full respect to the judge's unique decision-making role and any advantages arising from the trial process itself, the decision was not reasonably open to the court on the evidence before it. In my view this is such a case. Despite the care with which she approached the matter, the recorder was led by her acceptance of professional opinion into a welfare decision that was manifestly wrong and amounted to an unnecessary and disproportionate interference with the right to respect for the family life of the children and their grandparents. I have reached that conclusion for these reasons. The recorder appreciated that she was balancing harm: paragraph 162 (see [42] above). She identified "a huge number of positives" in the children's current situation: Their clear wishes and feelings, which she described as an important factor. Their strong attachment to their grandparents, which she described as a significant factor. The high standard of care they had received, giving them "stability, consistency, love and nurture" over a sustained period. The importance of the children remaining together. The family's consistent cooperation with the local authority and the support that had been put in place. The importance of the children's school, with its really good understanding of their history and needs. The fact (not emphasised by the recorder, but in my view highly significant in welfare terms) that the placement enjoyed the support of the parents and was likely to give the children the best chance of maintaining relationships with them. The other side of the same coin displayed the disadvantages of a change in the status quo: The distress and trauma that would be involved in removal from the grandparents and a move into care by strangers, which the recorder accepted would be "devastating for the children" and "a huge loss". The risk that removal would lead to regression: the recorder said "I cannot say" whether it would be mitigated by the children's positive time with their grandparents, but she accepted that they would need significant support to understand and process why they had been moved. The severe reduction in family contact. The disadvantages of being in long term foster care for over a decade, with the possibility of repeated moves and even separation from each other, against a background of daily life as children in care. The fact that, despite the identified risks, the children had apparently come to no harm whatever in the past three years. All these known and undisputed matters evidently spoke extremely strongly in favour of the status quo. In these circumstances, the local authority care plan required compelling justification. At paragraph 188, see [42] above, the judge compared the loss that the children "will suffer" upon a move with the harm that "could occur" if they remained in a placement with clearly identified risks. She was weighing potential risks against certain losses. It is of course open to a court to find that children need to be protected from harm that they have not yet suffered. Here, the recorder did not identify the extent to which her assessment of the 'low-medium' risks posed by the grandfather and uncle depended on unproved matters but, however the risks were characterised, they clearly had to be factored into the welfare evaluation. However, I consider that in doing so the recorder gave patently excessive weight to this one factor, so that it came to outweigh all other aspects of the children's welfare. I refer to a number of matters: (1) Sexual abuse is a great evil, but the court's function is not to protect children from all risk at any price. Here, the standard which the recorder applied was not clear. She recorded without comment the Guardian's evidence that she was not reassured that the grandparents had the capacity to protect and keep the children "100% safe", and that "24/7" monitoring would be needed (paragraphs 100 and 102). She does not appear to have considered that the uncle moving out in response to Ms Sensicle's evidence made any meaningful difference to the risk because he continued to play a significant role in the children's lives (paragraphs 145-148). Overall, I am left with the sense that the recorder considered that any significant risk of these children being sexually abused in the home, arising from a combination of historic events and lack of protective insight, must lead to removal. That unduly privileged one factor in the welfare checklist over all others. (2) In this case, the recorder did not enjoy any particular advantage from seeing the witnesses. The only part of the judgment that contains any relevant assessment of the oral evidence is at paragraphs 154 and 173 (see [39] and [42] above), where she speaks of not being reassured by the family's evidence about their understanding of the risks. She was entitled to find that the family lacked insight (in the sense that it did not see the risks that the court found to exist), but it was unduly rigorous to hold that "without insight the grandparents cannot act protectively" (paragraph 154) or that "just following rules and boundaries is not enough if you don't understand the reasons" (paragraph 182). Similarly, the recorder noted that the grandparents had "not shown a great deal of their own initiative in taking protective steps and are overly reliant on being told what to do." (paragraph 143, see [39] above). That approach led the recorder to pay inadequate regard to the sustained history of cooperation, and the quality of care that the children had actually received and which she was satisfied would continue (paragraph 118, see [34] above). (3) Placement in foster carer care would protect the children from the risk of sexual abuse by family members, but it would not "ensure that the children are kept safe from the risk of sexual harm now and throughout their minority" (paragraph 186, see [42] above). (4) The judge said, rightly, that she could not ignore the expert assessments (paragraph 185, see [42] above), but their recommendations are subject to the same reservations as hers. There was therefore no justification, still less a compelling one, for these orders. Standing back, these children had been rescued from the inadequate and harmful care of their parents and had found a haven with their grandparents. That haven may not have been free of all risk, but it was showing every sign of meeting the children's needs. On any view of the evidence the welfare balance fell decisively against a plan that cast them off from their family and set them for the remainer of their childhoods upon what would for them be the open sea of public care. The arguments in favour of such a radical interference with family life fell far short of justifying these care orders. I would accordingly allow the appeal, discharge the care orders, substitute supervision orders, restore the interim child arrangements orders and remit the grandparents' application for special guardianship orders to the Family Court. Lord Justice Coulson: I agree. Although tangential to the principal issues raised by this appeal, I fully share Lord Justice Peter Jackson's concern about the conduct of the local authority after the care orders were made. It seems to me plain that, as the circumstances relating to the proposed foster placement continued to change, and this appeal was first mooted and then formally pursued, it was in the children's best interests that they remain with the grandparents. That was so, despite the absence of a formal application for a stay. Lady Justice Elisabeth Laing: I agree with both judgments. ____________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII