Managing Sexual Risk & Procedural Fairness — Lessons from the Court of Appeal

By James Dove, Harcourt Chambers

Welcome to this month’s update from the Public Law Team at Harcourt Chambers. In this issue, we look at three recent judgments of the Court of Appeal that provide vital clarification on evidential limits in sexual risk cases, procedural fairness at the IRH, and the correct approach to threshold drafting. Each case sharpens the balance between robust safeguarding and the principles of justice and proportionality.

Commentary on K-H (Children) [2025] EWCA Civ 1368

The Court of Appeal’s judgment in K-H (Children) [2025] EWCA Civ 1368 provides an important restatement of the evidential and proportionality principles that govern the management of sexual risk in family proceedings. The case exposes a recurrent difficulty for courts and practitioners: how to evaluate and manage potential sexual risk in the absence of current harm or proven offending, and without allowing suspicion to eclipse evidence.

Background

The case concerned three children, aged five to eight, who had lived with their paternal grandparents since 2022 after serious neglect by their parents. The placement was stable and the children were flourishing. However, the Family Court ordered their removal into long-term foster care, finding that the grandparents could not adequately protect them from sexual risk arising from (i) the grandfather’s historic convictions for sexual offences committed between 1975 and 1984, and (ii) allegations against the children’s paternal uncle, some of which were disputed and never tested in court.

Despite unanimous professional acknowledgment that the children were safe and thriving in the grandparents’ care, the recorder determined that the risk of sexual harm—though theoretical—was too great to manage within the family, given perceived deficits in the grandparents’ “insight” into risk. The Court of Appeal (Peter Jackson LJ, Coulson LJ, and Laing LJ) set aside the care orders, substituting a twelve-month supervision order as a proportionate alternative.

The Central Issue: Fact, Suspicion, and Future Risk

At the heart of the appeal lay a question of principle: whether a family court may rely on unproven or disputed allegations when assessing the likelihood of future sexual harm. The appellate court held firmly that it may not.

Drawing upon Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563 and Re S-B (Children) [2009] UKSC 17, the Court reaffirmed that findings of likelihood of harm must rest on proven facts, not on suspicion or inference from unestablished allegations. As Lord Justice Peter Jackson summarised (at [60]):

This clarification rebuts a tendency in some risk-heavy cases to treat unproven concerns as part of a “wide canvas” of risk factors. The Court rejected the argument, advanced on behalf of the children’s guardian, that welfare assessments allow reliance on unverified “background factors.” Such an approach, Peter Jackson LJ warned, would “greatly increase the risk of error and injustice.”

Managing Sexual Risk: The Evidential Challenge

The difficulty faced by professionals in K-H was not the absence of historical material but its remoteness and ambiguity. The grandfather’s last conviction pre-dated the children’s births by four decades. The uncle’s conduct as an adolescent was concerning but had never resulted in a criminal finding. A psychologist assessed both men as posing a low to very low risk of sexual harm; an independent social worker elevated that to low-medium when considering the opportunity presented by caregiving.

Yet, despite consistent adherence to safety plans, the local authority and Children’s Guardian concluded that the grandparents’ lack of “insight” rendered the situation unsafe. The recorder adopted that conclusion wholesale, describing the family’s position as part of “three generations of inappropriate sexual behaviour.” The appellate court found this approach legally unsound.

As Peter Jackson LJ observed (at [67]), no causal link was proven between the grandfather’s historic offending, the uncle’s alleged misconduct, and the eldest child’s brief episode of sexualised behaviour at school. Treating these events as evidence of a “pattern” of intergenerational sexual risk was therefore speculative and impermissible.

Proportionality and the Limits of Precaution

The appeal judgment also engages with a deeper tension between safeguarding and proportionality. The recorder, the Court noted, appeared to have been “overwhelmed by the issue of risk,” effectively treating the elimination of all possible sexual danger as a precondition of family placement.

The Court of Appeal rejected this absolutist stance. As Peter Jackson LJ stated, welfare decisions “do not require the elimination of all risk.” The appropriate legal standard is whether the child can be kept sufficiently safe, not absolutely safe. In this case, the children’s welfare was demonstrably being met within the grandparents’ care, and the proposed foster placement introduced its own uncertainties — a fact tragically borne out when the first foster placement broke down following an allegation of physical assault by the foster carer.

This element of the judgment serves as a cautionary reminder: state intervention must not be driven by the pursuit of perfect safety at the expense of family integrity. Article 8 of the European Convention on Human Rights demands that interferences with family life be not only necessary but proportionate to the level of established risk.

Professional Insight and Legal Standards

A recurring motif in sexual risk cases is the professional emphasis on “insight” and “minimisation.” Practitioners frequently interpret a carer’s reluctance to acknowledge historical offences as evidence of incapacity to protect. Yet the Court highlighted the limits of this reasoning. Quoting Dr Parsons, the psychologist, Peter Jackson LJ noted that denial “does not increase risk, though it may make it difficult to work with an individual constructively.” The law requires protection against acts, not against attitudes.

Where families have demonstrably complied with supervision, working agreements, and monitoring — as the grandparents in K-H had done — the absence of deep psychological “insight” cannot, without more, justify removal.

Implications for Practice

• Risk assessments must be evidence-based. Courts cannot rely upon unproven allegations or speculative intergenerational patterns.
• Proportionality remains paramount. Protective intervention must be necessary and commensurate with the level of risk that can be proved.
• Insight is not synonymous with safety. Compliance, cooperation, and practical supervision may offer sufficient protection even where insight is limited.
• Historic offending must be contextualised. Remote or adolescent offences require careful analysis of present-day relevance, not mechanical reliance.
• State care carries its own risks. The breakdown of foster placements in this case exemplifies the fallacy that public care is risk-free.

Conclusion

K-H (Children) stands as a significant corrective to over-cautious practice in sexual risk management. It reasserts that child protection law is not a vehicle for speculative precaution but for evidence-based intervention. As the Court of Appeal made clear, risk assessment is not about eradicating uncertainty but about distinguishing what can be proved from what is merely feared. In doing so, the case re-centres the law’s balance between child safety and family autonomy — reminding professionals and courts alike that while safeguarding is vital, so too is justice.

🏛️ Concluding at the IRH: A Word of Caution from the Court of Appeal

By James Dove, Harcourt Chambers · November 2025

Two recent decisions of the Court of Appeal — Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342 and Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362 — deliver important guidance on the circumstances in which it is, and crucially is not, appropriate for care proceedings to conclude at an Issues Resolution Hearing (IRH). Both appeals were allowed. Both judgments were given by Lord Justice Cobb, and each exposes distinct procedural pitfalls that may arise when well-intentioned efforts to resolve proceedings at the IRH overtake the demands of fairness and proper judicial reasoning.

Re H: Procedural Fairness and the Limits of Robust Case Management

In Re H, care proceedings that had been ongoing for more than two years were brought to a summary conclusion at an IRH lasting 45 minutes. Despite opposition from both parents, the judge made final care orders for two of the three subject children. The Court of Appeal (Green, Phillips and Cobb LJJ) allowed the father’s appeal and substituted interim care orders.

The Court reaffirmed that while the Public Law Outline (PLO) contemplates that an IRH may be used as a final hearing in “appropriate cases”, that can only be where “the necessary evidence is before the court” and the procedure adopted is fair (Re J [2017] EWCA Civ 398). Procedural efficiency must never displace Article 6 fairness — “justice must not be sacrificed upon the altar of speed”.

Key points from the Court’s reasoning included:

• There was a material issue of fact – namely the father’s sobriety and risk of relapse – which required determination through evidence. By deciding summarily, the judge denied the parents their right to challenge the local authority’s case.
• The judge’s decision to make final orders without prior notice (when the local authority had indicated in its position statement that a final hearing would be needed) was unfair.
• Incomplete evidence — including outstanding assessments and DBS checks — made it premature to reach a final determination.
• The judge’s judgment failed to analyse the section 1(3) welfare checklist or the proportionality of the orders.
• The President’s 2024 guidance that IRHs should be properly listed and prepared “as if for final hearing” was not followed.

The Court concluded that, however well-motivated, the judge’s attempt to draw the proceedings to a close was procedurally flawed and unjust.

Re D: Threshold, Default and Judicial Reasoning

In Re D, final care and placement orders were made at an IRH in the absence of the parents. The local authority relied on a short “threshold” document; the case management orders had stated that if no response to threshold was filed, the parents would be “taken as not disputing” it. The judge held that threshold was “met” and proceeded to make final orders.

The Court of Appeal (Baker, Cobb and Miles LJJ) again allowed the appeal, discharging the orders and substituting an interim care order.

Lord Justice Cobb identified two central failings:

1. Inadequate threshold findings – Section 31(2) Children Act 1989 places the obligation on the court to be satisfied that the threshold criteria are met. That duty cannot be discharged by default, consent, or “deemed acceptance”. The judge must scrutinise the evidence and make express findings. The “bulwark” against unjustified state interference in family life is a judicial finding of significant harm or risk of such harm.
2. Inadequate reasoning – The judgment read as a “quasi-administrative act”. It contained no clear analysis of the alleged facts or linkage between the facts and the statutory test. Even when parents do not attend, the court must provide reasons that show how threshold was met and why the orders were necessary and proportionate.

The Court also criticised the use of threshold documents that simply recite “reports” or “evidence from professionals” rather than proved facts, reiterating Sir James Munby P’s warning in Re A (Application for Care Orders: Local Authority Failings) [2015] EWFC 11 that such pleading “is wrong and should never be used”.

The Broader Message

• The IRH is an important stage in the PLO but not a short-cut to finality.
• A case may only conclude at an IRH where the evidence is complete and the issues can fairly be determined without oral evidence.
• Judges must give sufficient time to preparation and must record findings, reasoning, and welfare analysis in any judgment concluding proceedings.
• Where the court is invited to make final orders at an IRH, Article 6 and 8 rights and procedural fairness remain paramount.
• The Court of Appeal has now twice in quick succession intervened to correct premature finalisation at IRH. These decisions will likely prompt renewed caution in case management across the family courts.

📘 Practice Note: Case Management Orders and “Deemed Acceptance” of Threshold

Following Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362

The Court of Appeal’s decision in Re D (Threshold Findings and Final Orders at IRH) has drawn attention to a discrete but important point of practice: the wording of case management orders that purport to “deem” parents to accept the local authority’s threshold allegations if they fail to file a response.

The Background

In Re D, case management directions had followed a familiar pattern based on paragraph [148] of the Standard Form Orders (Vol. 2, Order 8.0: May 2024). The order provided that: “If [name] fails to comply with paragraph [x] of this order they shall be deemed to accept the threshold allegations made by the local authority...” When the parents failed to respond, the judge treated threshold as established and went on to make final care and placement orders at the IRH. On appeal, the Court of Appeal held that this approach was legally unsound. The “deemed acceptance” provision was found to be unsafe, misleading, and inconsistent with the court’s statutory duty under section 31(2) Children Act 1989.

The Court’s Concern

Cobb LJ explained that this form of wording risks turning the determination of threshold into “an administrative rather than a judicial act.” In particular, it may:

• Blur the line between acceptance of allegations and proof of threshold;
• Discourage proper judicial engagement with the evidence;
• Create the impression of a default judgment, akin to civil proceedings under CPR Part 12; and
• Reverse the burden of proof, implying that the parent must disprove threshold.

The judgment emphasised that threshold cannot be established by silence, agreement, or default. The duty rests squarely on the court to be satisfied that the statutory test is met, based on evidence.

Suggested Wording

Practical Points for Practitioners

• Avoid “deemed acceptance” language in draft orders. Use wording that permits the court to proceed in the parent’s absence, but not to treat non-compliance as proof.
• Ensure threshold schedules are clear and properly linked to the statutory test. The burden of proof remains on the local authority throughout.
• Judges and advocates should be alert to the potential for confusion in pre-populated order templates. Any draft orders relying on the old [148] wording should be amended before approval.
• The Court has invited Peel J, as Lead Judge for the Standard Orders Group, to review paragraph [148]; practitioners should expect revised template wording in due course.

Key Takeaway

Re D makes plain that proof of threshold is always a judicial task, never a procedural formality. Silence from a parent may justify proceeding without their evidence — but it can never justify assuming the threshold is met.

Final Thoughts

These decisions collectively prioritise fact‑based reasoning over precautionary inference, proportionate safeguarding over speculative intervention, and fair process over administrative expedience. They remind us that the law’s protective function depends on its fairness — both to children and to families.

— James Dove, Barrister, Harcourt Chambers