Jonathan Cowen and Andrew Burrell consider the courts' approach to appeals against a decision to take a child into care and review related judgments from the last 2 years.
How easy is it to appeal a decision to take a child into care? In one sense, the test is no higher than appeals in civil courts. You merely must show that the trial judge was 'wrong'.
Yet, unlike civil cases, care proceedings are 'quasi-inquisitorial': Re W [2013] EWCA Civ 1227 at [36]. A first-instance judge must weigh up many factors when deciding if the threshold is crossed or what order is in the child’s best interests.
It is a decision not primarily of law nor of fact. Instead, it is an exercise of 'evaluation': Re B [2013] UKSC 33 at [57].
No wonder, then, that appellate courts are so reluctant to interfere in care cases. The trial judge has watched the witnesses be cross-examined and typically has a much better grasp of the documentary evidence and the dynamics between the parties than the appellate judges are likely to have.
So when will the appellate courts intervene? What are the Supreme Court’s and Court of Appeal’s approach to appeals against care orders?
How has that approach has been applied in reported appeals since 2023?
The approach on appeal: Re B 2013 and when a first-instance decision is 'wrong'
Re B [2013] remains the leading authority on appealing care orders. The Supreme Court dealt with 2 key questions.
What was the test for appealing a judge’s decision that the threshold had been crossed?
The court held that it was no different to civil proceedings: was the judge 'wrong' (e.g. [44], [110], [138], [203])? Other descriptions – such as whether the decision was 'plainly wrong' or not 'open' to the judge – were rejected.
Also, like in the civil courts, an appeal was a ‘review’ of the case, not a full re-hearing. This meant appeal courts would show a 'degree of reticence' about overturning decisions [44], [110].
How should an appeal court deal with the ‘welfare’ stage of deciding what order to make?
It had a duty to give the child’s welfare paramount consideration (Children Act 1989, s.1) and to ensure that any order was necessary and proportionate (as required by both domestic law and ECHR Article 8).
Did this mean appeal courts need to determine what order to make afresh? By a bare majority, the Supreme Court said, 'no'. Again, all that was required was to ‘review’ the judge’s decision on the proportionality of a care order.
Only if satisfied that the judge’s decision was 'wrong' – or if there was some procedural or other irregularity – would the appeal be allowed (e.g. [83]-[90]).
An example of the Court of Appeal conducting such a review followed soon after: Re G [2013] EWCA Civ 965.
The court held that the trial judge had considered each alternative to a care order before ruling it out, leaving a care order as the last option standing.
That meant that the pros, cons and proportionality of a care order were not themselves considered independently [49]-[54].
The result of an appeal
What then should happen if the appeal court decides that the trial judge was wrong: should it always remit or can it decide the case for itself?
This question arose in Re B [2014] EWCA Civ 565. The Court of Appeal held that, where a judge’s error was 'sufficiently discrete' that it could be corrected, then an appeal court could fill in the gaps in the judge’s reasoning, allowing the order made below to stand [30].
But if the trial judge showed a 'lack of reasoning', there was missing evidence or the issue on which the judge had erred was the credibility or reliability of witnesses, then the case would likely need to be remitted [29]-[31].
More recently, in Re H-W [2022] UKSC 17, the Supreme Court reached a similar conclusion.
There, the trial judge failed to explain why a care order was necessary to mitigate the risk of sexual harm to the children, given that it would also cause them huge emotional harm [62].
The court remitted the case rather than substituting the care order for a supervision order, saying it was not equipped to make its own proportionality assessment [63]-[64].
Appeals based on the judge’s failure to give adequate reasons
As in the civil courts, family practitioners considering appealing a judgment for lack of reasons are expected to invite the trial judge to amplify their reasons when applying for permission to appeal: Re A [2007] EWCA Civ 1058 at [15]; Re A and L [2011] EWCA Civ 1205.
Yet, in recent years, the courts have become concerned that requests for clarification in care proceedings have become routine, excessive and unnecessary. In Re Y-M [2024] EWCA Civ 71, the Court of Appeal set out 5 principles to combat the problem [90]:
- Only seek a clarification if the deficiency in reasoning is material to the decisions the court must make (i.e. is the threshold crossed and what orders meet the child’s welfare needs?)
- Counsel should explain why the clarification is material to the decisions the court must make.
- This is not the time to re-argue the case, reiterate submissions or ask the judge to reconsider.
- All parties should put their requests into the same document and, if needed, hold an advocates’ meeting to compile it. There should not be repeated requests for clarification, save in exceptional circumstances.
- Judges should only respond to clarification requests which are material to decisions they must make.
Moreover, in some cases, a judge’s reasoning will be so defective that asking for clarification is not appropriate.
For example, in Re C [2023] EWCA Civ 334, the Court of Appeal held that if the basis of the judge’s decision was impossible to discern, or where there were other deficiencies in the judgment beyond a lack of reasons, then the parties should jump straight to seeking permission to appeal.
Appeals based on the judge changing their mind
The clarification process gives rise to a further possible ground of appeal: what if it causes the judge to change their mind?
In Re K-L [2015] EWCA Civ 992, the trial judge gave an oral judgment finding that the father had sexually abused one child. However, she followed it up with a written judgment a few weeks later, rejecting that allegation. When emailed by one of the parties asking why she had changed her mind, she circulated a 3rd judgment, which had annexed to it her response.
In an earlier care case – Re L and B [2013] UKSC 8– the Supreme Court confirmed that judges can change their minds before an order is sealed, but this must be done judicially and not capriciously.
Yet in K-L, the judge had not given a satisfactory reason why she had changed her mind. She blamed a slip of the tongue, a reason the Court of Appeal said did not stand up to scrutiny, given how clear her oral judgment had been.
Appeals of pure findings of fact
What if a care appeal is against a pure finding of fact, rather than whether the threshold is crossed or the proportionality of an order?
In Re A [2013] EWCA Civ 1026 at [33]-[34], the Court of Appeal held that Re B [2013] had not changed anything. As in civil proceedings, the appeal court will give 'an enormous margin of discretion and respect to the position of the trial judge', being the one who heard the oral evidence [33-34].
Consequently, the test for appealing factual findings in civil proceedings – as summarised in Volpi v Volpi [2022] EWCA Civ 464 – applies equally in the family courts. A finding must be 'plainly wrong' to be overturned on appeal, and a decision is “plainly wrong” if no reasonable judge could have reached it [2].
However, practitioners should consider whether an appeal is needed at all. In Re E [2019] EWCA Civ 1447, the Court of Appeal held that the Matrimonial and Family Proceedings Act 1984, s 31F(6), permits first-instance courts to reconsider findings of fact in both current and concluded care proceedings.
An appeal would still be appropriate when alleging an error by the trial judge. However, if the challenge was based on fresh evidence, a Part 18 application could be made to the first instance court instead, which can consider whether to order a review hearing.
Appeals of case management decisions
Another area where the Court of Appeal’s approach does not differ between civil and family law is its approach to appeals of case management decisions.
In Re TG [2013] EWCA Civ 5, the court emphasised that it will interfere only if 'the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge' [35].
A recent example is Re G (A Child: Scope of Fact-finding) [2025] EWCA Civ 1044 where the Court of Appeal held (albeit by a majority) that the trial judge’s decision not to hold a separate fact-finding about the death – 6 years earlier – of the child’s older sibling was open to the judge, having correctly directed himself in law and taken all relevant matters into account.
Recent cases
How, then, have these principles played out in the Court of Appeal in the last 2 years? Several recent reported cases were challenges to a judge’s ‘evaluation’:
- In Re JW [2023] EWCA Civ 944, the mother appealed the proportionality of a care order when the local authority had never suggested removing the children from her.
The Court of Appeal held that 'exceptional reasons' were needed for a care order that permitted children to remain at home.
It would be rare that a child was both at such risk of harm that a care order needed to be made and that those risks could be managed without removing the child.
The trial judge had not explained what features of a care order made it necessary compared to a supervision order [72], and so the appeal court substituted the latter for the former.
- Re O [2024] EWCA Civ 126 concerned whether the parents’ negligent failure to prevent their child (then aged 5 or 6) from watching pornography on her father’s smartphone amounted to 'sexual abuse' and therefore met the threshold of significant harm.
The Court of Appeal held that the trial judge was not wrong to make such a finding. Using the phrase 'sexual abuse' reflected the nature and gravity of the judge’s findings.
The judge had been assisted by NSPCC guidance explaining that sexual abuse did not require physical contact. Indeed, non-contact abuse may be no less harmful than abuse involving contact.
- In Re D and A [2024] EWCA Civ 663, the parents challenged the trial judge’s finding that the child’s head injuries were inflicted deliberately, recklessly or negligently and therefore the threshold was crossed regardless.
The court allowed the appeal, holding that the trial judge had bogged herself down in an 'unnecessary and disproportionate' analysis of expert evidence, meaning she failed to consider factual evidence that pointed the other way, such as how the parents promptly took the child to hospital.
No party had suggested that the parents had been reckless or negligent, such findings were not supported by any reasoning and counsel had not been asked to make submissions on them.
Re T (Children: Risk Assessment) [2025] EWCA Civ 93 is an example of an appeal being allowed for inadequate reasoning.
The court reminded trial judges that, however familiar they are with the relevant principles in care cases, they have a duty to explain and justify their decision.
In this case, the trial judge had failed to conduct an effective risk assessment and consequently had not done a proper welfare evaluation, comparison of the options, or considered the proportionality of making final care and adoption orders.
- In Re M (Care Order: Risk Family Placement) [2025] EWCA Civ 163, the appeal was allowed on several bases: one was that the court had not heard evidence from the paternal grandparents (with whom the local authority wanted to place the child), meaning that the mother was unable to test the local authority’s case that the child would be safer in their care.
Accordingly, the court’s weighing up of the pros and cons of each placement option was not a fair and balanced one.
- Yet Re K and G (Care Proceedings: Fact-Finding) [2025] EWCA Civ 910 is a reminder that appealing factual findings and evaluative decisions remain an uphill struggle.
Despite the local authority, guardian and both parents agreeing that the fact-finding judgment was inadequately reasoned, the Court of Appeal upheld it as sufficiently clear and cogent.
- Pure points of law in care proceedings still occasionally make their way to the Court of Appeal. Re S [2023] EWCA Civ 706 concerned the test for joining a father without parental responsibility as a party to care proceedings.
The court held that he did not have to show any prospect of success. Rather, he was presumed entitled to be a party unless there was a justifiable reason to refuse his application, and the court could use its case management powers to mitigate some of the risks of joining him to the case.
- Re E (Section 37 Direction) [2025] EWCA Civ 470 was a question of statutory interpretation: can a court direct the local authority to conduct a section 37 investigation, or make an interim care order, for children who are not the subject of the proceedings?
The Court of Appeal held it could not and, in any event, it was procedurally unfair to do so without giving notice to their parents.
What does this mean for local authorities, parents and guardians in care proceedings?
Appeal courts continue to show considerable deference to the tricky evaluative judgments that first-instance courts must perform daily. Yet there remains scope to appeal successfully poorly reasoned findings, failures to consider the proportionality of care orders, and the misapplication of statutes.
All you must (usually) show is that the judge’s evaluation was wrong – though that task is often an uphill struggle.