L-G (Children: Risk Assessment) [2025] EWCA Civ 60

Sharan Bhachu represented the appellant mother in the successful appeal of L-G (Children: Risk Assessment) [2025] EWCA Civ 60, securing a full rehearing of the case for her client. LJ Jackson provided the lead judgment, finding that the risk assessment undertaken in relation to the children’s welfare was incomplete, and reiterating the necessity of judges making clear findings in cases where they are fundamental to any risk assessment carried out.

Background

The appeal concerned O (a girl aged 5) and Y (a boy aged 1). Prior to the order under appeal, both had been living with their mother, who by all accounts provided excellent care. The mother and father of O separated in 2022, and O was spending regular time with her father. Y’s father Mr F, however, was considered a risk to the children by the professionals and was labelled by the presiding judge as a violent and cruel man. M and Mr F began their relationship in December 2022, and after the birth of Y the local authority immediately applied for protective orders. An interim order was thereafter made, and M gave undertakings to limit Mr F’s contact with Y. A month prior to the final hearing, M reported that she had separated from Mr F.

In the words of LJ Jackson on appeal: “This was a single-issue case. But for the risk from Mr F, every welfare factor strongly favoured confirmation of the existing arrangements”.

At the hearing, M was willing to agree to any protective orders and sought an adjournment to further test both her compliance and the permanence of her separation from Mr F. The judge pushed ahead, ultimately concluding that the risk posed by Mr F was too great. She proceeded to make a child arrangements order for O to live with her father and placed Y in the care of his maternal grandfather as special guardian. The order also provided the children with significant contact with M, with O spending a third of her time with M, and Y’s contact being entirely at the discretion of his maternal grandfather. Despite the court endorsing the supervision of M’s contact with both children, as well as Mr F’s contact with Y, these were only included in a recital and no supervision order was made.

Grounds of Appeal

The following grounds were considered:

1. There had been a failure to make a proper risk assessment;
2. There had been a failure to make key findings of fact; and
3. There had been a procedural error in relying on incorrect information

The Court dealt with Ground 3 quickly. It related to the judge’s remarks in her judgment about the parties’ seating arrangements outside of court, arrangements that none of the parties recognised as being true. It was not deemed as relevant to the appeal, and given the strength of other grounds, it was not explored in any detail.

Ground 2 concerned M’s case that she had adhered to her previous undertakings to keep the children away from Mr F. She argued that a finding of such should have been made, and that it should in turn have been factored into the overall risk assessment. While the respondent local authority had not sought such a finding, the Court agreed with Ms Bhachu that such a finding was necessary to underpin, as well as to assist with, any risk assessment carried out.

In addressing Ground 1 the Court stressed that, while just one of the factors in the welfare checklist, the risk of harm should be considered carefully where it may well be the decisive factor in a finely balanced case. It was not acceptable that the conclusion reached by the judge (that M did not share the assessment of Mr F as a dangerous man) could be determinative of the case on its own. This was particularly the case where the subsequent welfare decision separated the children and left supervision arrangements uncertain.

While the judge had correctly referred to the questions set out in the case of Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, the Court deemed that the following further questions should have been asked:

1. What are the settings and circumstances in which Mr F would have a realistic opportunity of harming these children?
2. What is the likelihood of those settings and circumstances arising and remaining undetected?
3. If the mother is incapable of being instinctively protective, can the likelihood or consequences of harm be reduced by protective measures

Despite M and the local authority identifying a list of protective measures that could have been put in place, they were not addressed by the judge in her judgment. The Court also questioned the absence of any supervision order, the absence of which appeared incongruous with the rest of her judgment. While the Court conceded that, in answering the above questions, another judge hearing the case may well come to the same decision, the questions still had to be asked.

Conclusion

The appeal was therefore allowed, and the case was remitted for a full rehearing. In the meantime, the Court ordered a return to the pre-existing arrangements, with the children returning to M’s care under an interim supervision order.

L-G (Children: Risk Assessment) [2025] EWCA Civ 60 Judgment

Case note provided by James Hoile. 

7th Feb 2025

James Hoile

Call Pupil

Sharan Bhachu

Call 1999