The Supreme Court allowed appeals against care orders removing three children from their mother’s care into separate foster placements. The trial judge failed to conduct the required side-by-side analysis of competing options and their proportionality, instead proceeding too directly from finding risk of sexual harm to ordering removal without evaluating less interventionist alternatives.
Background
The appellants are a mother (M) and her partner (F3) who care for three children: C (aged 14), D (aged 11) and E (aged 9). M has a history of local authority involvement since her own childhood, having suffered neglect and sexual abuse. Her eldest son A, a troubled young man previously made subject to a care order, sexually abused child E in November 2019 when he stayed at the family home while the parents were distracted by an injured dog. A non-molestation order was made against A, and a longstanding injunction was already in place against F2 (E’s father), who had a history of posing sexual risk to the family.
Care proceedings were issued in March 2020. After a fact-finding hearing, the judge’s findings against A were limited to the single incident in November 2019; additional allegations were not proved to the requisite standard. No findings of neglect were sought. The welfare hearing lasted six days, with oral evidence from ten witnesses including social workers, a Consultant Child and Adolescent Psychiatrist (Dr Freedman), M, F2, and the children’s guardian. On 26 July 2021 the judge made care orders for C, D and E approving a care plan of removal to separate long-term foster placements with contact limited to six times per year.
The Issue(s)
The Supreme Court granted permission to appeal on two refined questions:
(1) Whether, in order to determine proportionality of care orders removing children into foster care, the court was required as a matter of law to assess: (a) the likelihood of sexual harm; (b) its consequences; (c) the possibility of reducing or mitigating the risk; and (d) the comparative welfare advantages and disadvantages of available options.
(2) Whether the judge erred in law by failing to make any or any proper assessment of those matters.
Importantly, the appellants did not challenge the judge’s primary factual findings or his assessment of the risk of harm. Their case was that the judge erred in failing to balance that risk against the harm the children would suffer from removal and separation, and in failing to evaluate less interventionist alternatives.
The Court’s Reasoning
Proportionality and Necessity
Dame Siobhan Keegan, delivering the unanimous judgment, traced the legal framework from In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, In re B-S (Children) [2013] EWCA Civ 1146, and In re G (A Child) [2013] EWCA Civ 965. She emphasised that a care order engages Article 8 ECHR rights and can only be made if necessary and proportionate:
The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option … ‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’
The court held that the obligation under Article 8 ECHR:
does no more than re-state the longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order, but the emphasis given to the issue in In re B was overdue.
Dame Siobhan Keegan noted that while the care order in this case was not one with a plan for adoption, its consequences were:
almost as far-reaching. It will break up the existing family and indefinitely so; it can be expected to last throughout the minority of the children. It will separate them from their parents and also from each other.
Application to the Facts
The court accepted that the judge’s factual findings and legal directions were meticulous. However, the critical deficiency lay in the disposal stage. The judge had correctly directed himself that proportionality was required, stating:
I have to consider the proportionality of any decision I make to remove a child permanently from their family. In other words, I have to be satisfied that the steps taken or the order made are indeed proportionate to the harm found or feared.
Nevertheless, the court found this self-direction was not carried through into the actual analysis. At paragraph 176, the judge’s rationale was simply:
I have carefully considered the local authority section 31A plan for a placement in foster care under a care order. It seems to me necessary so as to allow the children to be cared for in foster care and for the local authority to share parental responsibility with their parents and determine the extent to which their parents can exercise their parental responsibility. It is the only way, I think, of stopping the difficulties that the children have suffered in the care of their mother and in the care of one or more of their fathers throughout their lives, and I have concluded that each would continue to suffer if they remained in that care.
Dame Siobhan Keegan identified the fundamental flaw:
one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child. Nor is there any comparison of the harm which might befall the children if left at home with the harm which would be occasioned to them if removed, and separated not only from the parents but from each other.
The court noted specific omissions: the judge did not consider the efficacy of the existing injunction against F2 or the non-molestation order against A; did not address item (g) of the welfare checklist (range of powers available); and did not assess the impact of the section 31A care plan on each individual child. The appellants had identified multiple less interventionist options including supervision orders combined with non-molestation orders, prohibited steps orders, exclusion orders, and various support and monitoring mechanisms.
The Approach on Appeal
The court confirmed that the existence of the proportionality requirement does not alter the principle that appeals proceed by way of review, not rehearing. An appellate court does not undertake a fresh proportionality evaluation. However, where a judge has failed to conduct the required evaluative process, the conclusion is that the decision is flawed:
If, on appeal, it is found that a judge has unduly telescoped the process, and has not made the side-by-side analysis of the pros and cons of each alternative to a care order, then the likely conclusion is that his decision is, for that reason, flawed and ought to be set aside.
The court held that Lewison LJ’s approach in the Court of Appeal had been premature: it was wrong to ask whether the order was right or wrong when the judge’s reasoning process was itself deficient. The court also referenced R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47, cautioning against over-analysis of the appellate judge’s subjective state of mind and emphasising the need to focus on the nature and materiality of any error in the trial judge’s reasoning.
Practical Significance
This decision powerfully reaffirms the requirement, established in In re B and In re B-S, that when a court contemplates making a care order — particularly one involving removal of children from their family and separation from siblings — it must conduct a rigorous, holistic, side-by-side evaluation of all realistic options. A self-direction on proportionality is insufficient unless followed through in the actual analysis. The judgment clarifies that the obligation extends not merely to identifying risk, but to evaluating its extent, the possibility of mitigation through less interventionist measures (including injunctive relief, supervision orders, and support packages), and the comparative harm of removal versus remaining at home. The court declined to substitute its own order, holding that it was not equipped to conduct a proportionality assessment, and remitted the case for rehearing before a different judge, expressing the hope that the cases concerning all four children could be heard together expeditiously.
Verdict: The appeals were allowed unanimously. The care orders made in respect of children C, D and E were set aside on the basis that the trial judge erred in law by failing to conduct the required evaluative, holistic, side-by-side analysis of competing options and their proportionality. The case was remitted for rehearing before a different judge.
