Nick Goodwin KC and Margaret Styles look at the risk assessment in care proceedings
23rd Apr 2025 | Blog
An essential mindset and step-by-step approach
The identification, assessment and mitigation of risk is a core part of the work of social workers, lawyers and judges. The perception of risk can be influenced, sometimes heavily, by the subjective sensitivities of the assessor. It is all too easy for assumptions to be made about the level of risk and the extent to which the perceived risks will affect the child. Without a disciplined approach to risk assessment, there may be a tendency to allow risk-averse welfare analyses to dominate, particularly in circumstances where professional trust in the parents is limited. At the other end of the spectrum arises the possibility that risk will be understated. Judicial guidance on the approach to be taken by the court and by professionals has therefore been welcome.
We analyse three appellate cases in the first quarter of this year which reflect the guidance given by Peter Jackson LJ in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761. Notably, he has featured in all three reported cases, giving the lead judgments in Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60 on 31 January 2025, and Re T (Children: Risk Assessment) [2025] EWCA Civ 93 on 7th February 2025, and granting permission to appeal in Re M (Care Order: Risk: Family Placement) [2025] EWCA Civ 163. In the latter case the lead judgment was given by Cobb J on 22 February 2025. Nick Goodwin KC appeared for the child, supporting the successful appellant mother.
This note considers how this series of cases develops the law and how the Court of Appeal’s approach might be built into social work practice and advocacy in relevant cases.
So, first – the Re F baseline. The mother’s appeal against care and placement orders was allowed, those orders being set aside and the case remitted. The Court of Appeal decided that the trial judge was correct to have identified (1) the type of harm that might arise and (2) the likelihood of it arising. However, a more complex, sequential evaluation was required. The judge had not sufficiently addressed (3) the consequences of harm: what would be the likely severity of the harm to the child if it did come to pass? (4) risk reduction/mitigation: could the risk of harm be reduced or mitigated by the support services that were or could be made available? (5) the comparative evaluation: in light of the above, how did the welfare advantages and disadvantages of the child growing up with his mother compare with those of adoption? (6) proportionality: ultimately, was adoption necessary and proportionate in this case?
In Re L-G the single risk factor was that posed by the (violent and cruel) father of the younger child. At first instance the judge determined that the mother would be likely to reunite with him if the eyes of social care were not on the family, even though she had retained the care of the two older children under a supervision order and there was no evidence that she had breached her undertaking that her younger child’s contact would be supervised and limited. Nonetheless the judge made child arrangement orders for both children to live with other family members. The Court of Appeal reiterated the Re F guidance and further commented that ‘these broad questions (the Re F issues numbers (1)-(4) above) needed to be tailored to the facts of the individual case. In Re L-G those questions were:
- What were the circumstances in which a realistic opportunity of harm would arise?
- What was the likelihood of those circumstances arising and remaining undetected?
- If a parent was incapable of being instinctively protective, could the likelihood of harm or the consequences of harm be reduced by protective measures?
In Re T the two older children were placed in long-term foster-care under full care orders, whilst the youngest was the subject of a placement order with a time limited search for adopters. All professionals agreed that contact between the children and their parents was of a very high quality but the mother had been found in previous proceedings to have inflicted a serious injury on the middle child. The parents claimed to have separated, but after a period of years they had reunited and the children had been in their joint care. Peter Jackson LJ made even more explicit his reasoning and his guidance on risk assessment, using seven headings and first defining harm according to the statute in section 31(9). He said at paragraph 33:
“Accordingly, the court had to address these questions in relation to each of these children: (1) What type of harm has arisen and might arise? (2) How likely is it to arise? (3) What would be the consequences for the child if it did? (4) To what extent might the risks be reduced or managed? (5) What other welfare considerations have to be taken into account? (6) In consequence, which of the realistic plans best promotes the child’s welfare? (7) If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate?
A structured analysis of this kind, adapted to the facts of the individual case, is of benefit to those who make decisions and to those who are affected by them. The analysis need not be lengthy, but it ensures that undue weight is not given to one factor, however notable, and that other important factors are not overlooked. It must be remembered that risk assessment is about the realistic assessment of risk, not about the elimination of all risks. Likewise, the assessment of actual or likely harm is not the same thing as an all-round welfare assessment”.
In Re M the mother appealed an order for her infant daughter’s placement with the paternal grandparents. The father had convictions for sexual offences against teenage girls. The mother had remained in a relationship with him throughout the proceedings, albeit they had both abided by a written agreement whereby they did not actually see each other. The central issue was whether the mother, who by the end of the final hearing had agreed that she would not be able to continue in a relationship with the father in the longer term, could protect the child from the risks he posed. Cobb J. referred to all the authorities above and early in judgment stated at paragraph 74 that:
(i) The judge’s assessment of risk failed to take proper account of the steps which had been taken in the short-term, and could be taken in the longer-term, to mitigate the identified risk of harm posed by the father, while allowing [the child] to remain with her mother;
(ii) The judge did not undertake a proper comparative evaluation of the two placement options; this fundamentally undermined the proportionality of the decision to remove [the child] from her mother’s care;
(iii) The judge allowed her assessment of risk so to dominate her welfare evaluation that in reaching her ultimate conclusion she gave insufficient attention to the range of other welfare factors, and to the high degree of justification required to separate M permanently from her mother.
This repetition and codification of how to assess risk and place it alongside other welfare criteria to produce an overall sense of what is best for the child has to be helpful for everyone involved in care proceedings including the parents. If from the very earliest stages of child protection, professionals are clear about their worries, are already thinking about mitigation and how carers can be helped to reduce risk, then more coherent strategies may be developed for keeping children at home and reducing the number of cases in court. If the seven questions posed in Re T could become part of a refined SWET, it might well improve focus on the important matters, produce more cogent evidence and permit better targeted interventions.
Nick Goodwin KC and Margaret Styles
2025
