Judge was wrong to make final care orders without having allowed council to reconsider its position and file care plans reflecting her welfare decision, Court of Appeal finds

In A & Ors (Care Orders at Home) (Rev1) [2025] EWCA Civ 901 (10 July 2025), Lord Justice Baker concluded that the course taken by the judge  - to make final care orders without having allowed the local authority to reconsider its position and file care plans reflecting her welfare decision - was wrong.

The case concerned five children - A, B, C, D and E, who are aged between 8 and 13. They have three older siblings, all now adults.

The eight children were the subject of earlier care proceedings in 2019, arising out of allegations that the father was physically chastising the children.

It was also asserted by the local authority that the mother had failed to intervene to protect the children, and that both parents had failed to engage with professionals in order to reduce any risks to the children.

At a hearing, the judge urged the parents to voluntarily attend a parenting course.

The family came to the attention of social services again in February 2024 after A (then aged 11) had gone missing from the family home on several occasions.

In the course of social work inquiries, A alleged that her father had hit her across the face following her return, that he regularly threatened to hit her, and that she did not feel safe at home.

In May 2024, the local authority filed an application for care orders and initially sought the removal of the children under interim care orders.

In the event, at a hearing before a district judge, the parties agreed that the children should remain at home under a safety plan or contract of expectations, with an order excluding the father from the family home and a provision that the father's contact with the children should be supervised.

Although the parents agreed the plan, they never signed the document and it was alleged by the local authority that they broke the terms of the agreement on “many occasions” and continued to refuse to engage with local authority support.

The father stopped attending supervised contact in late September 2024, and the local authority became concerned that he was visiting the family home.

The final hearing was listed before HHJ Tyler over five days in March 2025. In the event, the judge was unwell on the first day, and the case came before the designated family judge, HHJ Singleton KC, for brief mention. Judge Singleton expressed the view that the local authority should consider changing its care plan to provide for the removal of the children.

Baker LJ noted: “It seems that the development that finally led the local authority to change its plan for the children was that, in the course of her oral evidence, the mother said that she would not work with the local authority or allow social workers into the home. The local authority understandably took the view that that made the original care plans unfeasible because they would not be able to work with the mother to address the risk factors while the children remained in her care.”

The hearing started before Judge Tyler, but on the fourth day it was adjourned because the local authority informed the court that it proposed to change its care plans to provide for the removal of all five children from the mother's care.

The part-heard final hearing resumed before the judge in April 2025. The local authority sought care orders for all five children with care plans for removal from their parents' care. The plans were for A to be placed in a therapeutic residential placement and for the other four children to be placed in long-term foster care (B and C to be placed together in one placement and D and E together in another placement).

The care plan included provision for defined contact with the parents. The local authority also sought an order under s.34(4) of the 1989 Act permitting it to refuse contact between the children and the father.

After a further three days of hearing, judgment was reserved and delivered on 2 May.

The judge expressed her ultimate conclusion in the following terms: "...I am driven to the conclusion (unattractive though I thought it was, and still think it is) that, in terms of the balance of harm, when one considers the risks arising from the threshold findings which I have made and the potential risks for each of these children, particularly of their emotional welfare, of being removed from the care of their mother, I am satisfied that it would be disproportionate to that level of risk to remove the children from the care of their mum."

“[…] As a result, I am also more than satisfied that it is entirely proportionate in this very unusual situation, exceptional situation, that the local authority should share parental responsibility for the children.”

For separate reasons, the local authority and the mother each applied at the conclusion of the hearing for permission to appeal on the grounds that the care plans were unworkable. Those applications were refused.

At the hearing on 12 May, the local authority informed the judge that the parents were continuing to refuse to engage and that there was evidence (denied by the father) that he had returned to live in the family home.

On that basis, the local authority applied for an injunction under the inherent jurisdiction excluding him from the home and its surrounding area.

After hearing argument, the judge made an order under that jurisdiction that the father must not go to, enter or attempt to enter the family home or go within 0.2 miles thereof.

Later that month, the father filed a notice of appeal against the care orders and against the injunction.

The local authority also filed a notice of appeal against the care orders, relying on the following grounds:

• The judge failed to properly evaluate the risk to the children if they remained in their mother's care and was wrong to make final care orders on the basis that they remain with the mother while the father has family time supervised by the local authority.
• She failed to weigh and balance the totality of the evidence available to her and so the factual findings, by not finding that the father had caused physical harm to the children, were flawed.

In June, Baker LJ granted the local authority permission to appeal on both grounds.

A further hearing took place before Judge Tyler. Following further developments, the local authority had applied for the removal of the children but in the event elected not to pursue that course pending determination of the appeals, on the basis that the injunction against the father was extended.

Consequently, the judge extended the injunction until mid July 2025.

Turning to the local authority’s appeal, Baker LJ said: “The fundamental problem is this. Under s.31(3A) of the 1989 Act, "no care order may be made with respect to a child until the court has considered a section 31A plan."

“When the judge made final care orders in respect of all five children, she did not have before her a plan which made provision for the children to live at home. The plans filed at the start of the final hearing had been withdrawn. The local authority was now proposing the removal of the children, and therefore no plans to that effect had been formulated.

“Accordingly, it was not lawful for the judge to make a final care order at that stage. Given her conclusion that the children should remain at home with the mother, the right course would have been to adjourn the hearing and invite the local authority to reconsider its plans for the children in the light of her judgment. Such a course was particularly important given the sharp divergence between her conclusions and the local authority's position.”

Concluding the case, Baker LJ remitted the local authority's application for rehearing before another judge, and made the children subject to interim care orders, until the conclusion of the proceedings or further order.  

Finally, Baker LJ granted permission to the father to appeal against the injunction, and made an order to the effect that the order under the inherent jurisdiction should be replaced with an exclusion requirement under s.38A of the 1989 Act on the same terms.

Lord Justice Peter Jackson and Lord Justice Bean agreed.

Lottie Winson