Children Law Update - Autumn 2026

Children Law update

Now we reach autumn 2026 (this year has gone far too fast) it is, inevitably, time for another of my now standard children law updates. I am going to concentrate upon the summer output from the Court of Appeal, which has been fairly volumous over the vacation period. I will kick off with D (Change of Circumstances: Domestic Abuse Allegations) [2026] EWCA Civ 969, which is an unusual case in itself, as it was a second appeal.

The background involved an appeal against the decision of a DDJ providing for the subject child, a girl named ‘D’, (1) to live with her mother and spend time with her father, and (2) granting the mother permission to enrol D at a primary school near to her home. That order represented a significant change in D’s life as up to that point, since the parents’ separation, she had lived with her father in the former family home and attended a local school. As a result of the order, she would move some fifty miles away to the mother’s new home and a new school. The father appealed the decision to a circuit judge, who refused the appeal. Permission was then granted to appeal that refusal decision to the Court of Appeal, who allowed the appeal with Baker LJ giving the lead judgment.

Earlier in proceedings allegations of a pattern of coercive and controlling behaviour were raised by the mother, with the CAFCASS safeguarding letter recommending a finding of fact hearing. The Court subsequently refused to direct such a hearing on the basis that:

‘Notwithstanding the allegations of domestic abuse the court has decided that a fact-finding hearing is not necessary, noting that each parent accepts that she should spend unsupervised time with the other one, including for weeks during holidays.’

The Court directed a s.7 report to deal with, amongst other things, ‘the parenting capacity of both parents having regard to the allegations of domestic abuse raised by the mother’. This is where things start to go awry, as you really have to ask how parenting capacity in the context of domestic abuse can be assessed fully and accurately in the absence of any admissions or findings?

The s.7 report recommended a change of residence and schools, with the DDJ at the final hearing adhering to those recommendations after hearing evidence from the author of the report. The COA judgment contains a masterful overview of all of the relevant statutory provisions and procedural requirements in the context of both allegations of domestic abuse and s.7 reports, in addition to which, Baker LJ also sets out the CAFCASS practice guidance 

 designed to provide ‘a structured approach to risk assessment of domestic abuse in the family court’ and its accompanying ‘complementary, overarching guidance document’. 

The central problem with the s.7 report in this case and the evidence of the CAFCASS officer was that the officer had essentially concluded that there was substance in the mother’s allegations and that her narrative was ‘more compelling’ than that of the father. In oral evidence, the CAFCASS officer stated that ‘My assessment that [the father's] care to [the mother] was not appropriate when they were together and that will have affected D and should D remain in F's care that that risk of harm will continue’. At the first appeal, the circuit judge refused the appeal on the basis that the DDJ’s judgment was not wrong or procedurally flawed and that the decision was fully justified within the ex-tempore judgment provided by the DDJ.

Baker LJ set out the guidance in relation to the drafting of judgments in children’s cases provided by Peter Jackson LJ in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407. Those principles merit repeating here as they continue to act as the ultimate authority on how to structure a judgment:

‘Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:

(1) state the background facts

(2) identify the issue(s) that must be decided

(3) articulate the legal test(s) that must be applied

(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned

(5) record each party's core case on the issues

(6) make findings of fact about any disputed matters that are significant for the decision

(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties

(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.

The last two processes – evaluation and explanation – are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention.’

Baker LJ concluded that the DDJ had not followed this structure adequately:

‘Regrettably, the DDJ's judgment failed to contain adequate references to any of these elements, and in some respects there was no reference to them at all. He did not state the background facts, or identify the issues, or each party's case on the issues. He did not refer to any of the evidence except for the section 7 report and the oral evidence of the Cafcass officer. As a result, there was no evaluation of the evidence as a whole, nor any indication as to the allocation of weight to the key features relied on by the parties. In dismissing the first appeal, HHJ Willsteed observed at various points that, in so far as there were omissions in the DDJ's judgment, they should have been addressed by a request for clarification. As this Court has recognised on several occasions, however, where the deficiencies in the judge's reasoning are on a scale which cannot fairly be remedied by a request for clarification, it will not be appropriate to seek clarification but instead to apply for permission to appeal: see Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 at paragraph 61 and Re C, D and E (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334 at paragraphs 30-1. The DDJ's judgment in this case unfortunately fell into that category.’

Following on from this, Baker LJ determined the following:

‘This was an important decision in the life of the child and her parents. There were plainly arguments going both ways that needed to be weighed carefully. Given the issues in the proceedings, notwithstanding the consequential delays, it would have been wiser to reserve judgment. Had this course been taken, it is possible that some of the omissions in the judgment would have been avoided. The failure to consider any aspect of the parents' evidence, or their arguments on the material issues, were perhaps the most striking omissions. But this was compounded by the DDJ's exclusive focus on the Cafcass officer's evidence. The analysis in the section 7 report did not provide a sufficient basis for reaching conclusions on the issues in the case. This might have become more apparent if the DDJ had identified those issues at the start of his judgment. 

Although the Cafcass officer recorded at the start of the report that he had "regard in particular to the welfare checklist as required by Rule 16.20/16.33 Family Procedure Rules 2010" and had "applied a welfare checklist analysis to the facts of the case throughout", there was no further reference to the checklist in the report. Instead, as noted above, the analysis was conducted primarily by reference to the Domestic Abuse Practice Pathway. Whilst some of the factors in the checklist were considered in the course of this exercise, others were not.

The most striking omission was the failure to address the likely effect on D of the change in circumstances which would undoubtedly follow were she to move to live with her mother, leaving the family home in which she has always lived and her current school where she is settled, and moving potentially to a household consisting not only of the mother but also her partner and his three sons. In preparing the report, the Cafcass officer was required, under FPR rule 16.33(4), to have regard to the factors in the welfare checklist in section 1(3) of the 1989 Act, including the likely effect on the child of any change in her circumstances. That was not only a plainly material factor in the checklist but also a matter which the case management order made at the FHDRA expressly directed that the report should cover. There was no consideration in the report of how the child would be affected by the proposed change at all and the particular direction to consider changes in educational provision was ignored. In this respect the Cafcass officer failed to comply with his duty under FPR rule 16.33(2)(a) to comply with the court's direction.

In his oral evidence, the officer did not accept that he failed properly to consider the effect of the change in circumstances that a move to her mother would involve, but the absence of any reference to it in his report, and the note of his answers to Ms Dudbridge's questions, indicate otherwise. The officer's observation in evidence that the child was "resilient" did not repair this omission and the DDJ was wrong to accept that it did.’

The post-mortem of the proceedings conducted by Baker LJ acts as a very thorough analysis of ‘what went wrong’, and it all started with the orginal s.7 direction:

‘The problems in this respect started with the FHDRA order. The author of the safeguarding letter had concluded that there was a reported pattern of coercive controlling behaviour which, if true, was "likely to be ongoing via the current arrangement", that D was "being caught up" in those behaviours, and that "her extreme distress at handover may be indicative of the level of distress she is experiencing". On that basis she recommended that there should be a fact-finding hearing. Contrary to that clear recommendation in the safeguarding letter, the FHDRA judge decided that a fact-finding hearing was unnecessary. But the fact, as recorded in the FHDRA order, that each parent accepted that D should spend unsupervised time with the other, did not obviate the need for a fact-finding hearing if, as the safeguarding letter stated, D was being caught up in controlling behaviours through the current arrangements and as a result experiencing extreme distress. As paragraph 6 of PD12J emphasises, it is the court's obligation to scrutinise proposed arrangements agreed between the parties to ensure that they meet the child's welfare needs.

The problems were compounded by the directions given to the Cafcass officer in the FHDRA order. Alongside the recital that "notwithstanding the allegations of domestic abuse the court has decided that a fact-finding hearing is not necessary", the order directed the officer to assess "the parenting capacity of both parents having regard to the allegations of domestic abuse raised by the mother". 

It should be noted that this direction does not comply with the template orders published by the Standard Orders Group with the authority of the President of the Family Division. The terms of the standard order to be used depend on whether or not findings have been made. Where findings have been made, the standard order suggests that the section 7 report should be directed to consider, inter alia, "any harm suffered by the child[ren] and the parent with whom the child[ren] are living as a consequence of the domestic abuse found" and "any harm which the child[ren] and the parent with whom the child[ren] are living is at risk of suffering if a contact order is made". Where no findings are made (which must include cases where the court has decided that a fact-finding hearing is unnecessary), the standard directions for the section 7 report do not refer to domestic abuse at all. Under the scheme of the standard orders, the only circumstances in which an officer asked to prepare a section 7 report may be directed to "have regard to allegations of domestic abuse" in circumstances in which findings have not been made is at an interim stage, before determination of facts by the court, when advising, inter alia, as to "the impact on the child[ren] and on the care given by the parent making the allegation of domestic abuse of any contact and the risk of harm, whether physical, emotional or psychological, if a contact order is made".

In this case, no one challenged the FHDRA direction to the Cafcass officer to assess "the parenting capacity of both parents having regard to the allegations of domestic abuse raised by the mother". In those circumstances, it is hardly surprising that he took the allegations into account. And for my part, it is difficult to see how the Cafcass officer could comply with this direction without considering whether the allegations were reliable. 

Given the direction to assess "the parenting capacity of both parents having regard to the allegations of domestic abuse raised by the mother", it is unsurprising that the Cafcass officer decided to use the Practice Pathway. As stated in the complementary Guidance, the Practice Pathway "assists the practitioner to conduct an evidence-based risk assessment focussing on child impact which supports professional judgement and should be used in all cases where domestic abuse is a feature". In this case, however, the officer elected to base his entire "professional judgment" on the Pathway. It became the prism through which he arrived at his recommendation. It formed the basis of his conclusion that "the only emotional safe option was for D to reside with her mother". As a result, he seemingly lost sight of the need to consider all the relevant factors in the statutory welfare checklist to which he was obliged to have regard under rule 16.33, including the effect on the child of the proposed change in her circumstances. 

It is clear from several statements in the report that the Cafcass officer based his recommendations on his conclusion that the abuse had occurred – not only his observation that the mother's narrative was "more compelling" but also his comments that he was "concerned about the potential for continued domestic abuse between the parties", and "in all likelihood [D] has witnessed her mother's suffering when they all lived together as a family". But in reaching those conclusions, he did not analyse the allegations using the court's approach to the assessment of risk outlined in the case law summarised at paragraphs 45-46 above. In his oral evidence, he said that he generally accepted what most people tell him as "their truth" and that if the mother was telling him that she was a victim of abuse he would take it into account as "her lived experience and potentially the child's lived experience".

It is crucial to evaluate the impact of the experience of abuse on the victim and child. It is through the lived experience of victims that professionals have acquired a greater understanding of the nature and extent of abuse, including coercive control.  Where there is a dispute about whether abuse has occurred, however, a court's finding must be based on an objective analysis of the evidence as a whole.  That analysis must be conducted by the court in accordance with the principles and practice identified in the case law cited at paragraphs 45 and 46 above and in PD12J. The Cafcass Officer's observations about the child and the parents may well provide important evidence as to whether domestic abuse is an issue within the family. I understand that this has been the experience in the Child Focused Courts with the Child Impact Report prepared at an early stage in the process. But such observations can never be elevated into findings which, if not agreed, are a matter to be determined by the court.’

So, upon completion of the section 7 report, it should have been recognised by the CAFCASS officer, the parties and the Court that, as the recommendation in the report was based largely on the conclusion that domestic abuse had occurred, the question of whether to hold a fact-finding hearing had to be reviewed. This is because if the CAFCASS officer’s assessment was correct, then it called into question whether the proposal as to the time D should spend with her father was consistent with her welfare. At the conclusion of the judgment Baker LJ makes a number of pertinent observations regarding practice in this area:

‘I conclude with three final observations. First, where the court, with or without the parties' agreement, has decided at the FHDRA that there should not be a fact-finding hearing into allegations of abuse but the Cafcass officer's section 7 report concludes that allegations of abuse are a material factor in the decision about the child's future, this should be expressly drawn to the court's attention by the Cafcass officer and the parties and the question of whether to hold a fact-finding hearing reviewed. There is of course the risk that this will add to the delay in reaching a decision about the future. But that is less serious than the risk that court may make an order on a factual basis which has neither been agreed by the parties nor determined by the court. 

Secondly, the requirement to take this course is identified in the Practice Pathway in the section entitled "Legal and procedural issues to consider". But as noted this is rather hidden in the current version between stages 2 and 3. It occurs to me that in future versions it might be moved to a more prominent place in the document. There may also be an argument for including the passage recited at paragraph 112 above as a recital in the standard template order made after a FHDRA.

Thirdly, this case underlines once again the importance of judicial continuity. As noted above, paragraph 10.2 of PD12B provides that "continuity of judicial involvement in the conduct of proceedings from the FHDRA to the making of a final order should be the objective in all cases". DDJ Loughridge was the third judge involved in the proceedings. It is possible that, had the final hearing been conducted by the judge who conducted the FHDRA, he would have realised that the conclusions reached in the section 7 report required him to revisit his decision that there need not be a judicial determination of the mother's allegations, either at a separate fact-finding hearing or as part of the final hearing.’

For me this judgment acts as a stark reminder to practitioners to ensure that the directions for any s.7 report made in a Court order carefully set out what the author of the report is being asked to consider and on what factual basis, i.e. is there to be a fact finding hearing undertaken before the s.7 is filed, has there already been one, or alternatively has the Court decided not to hold such a hearing and, if this is the case, then how is the author of the report asked to treat any allegations made by the parents against one another? The answer to the latter question must be that any allegations are treated as exactly that, ‘allegations’ as opposed to facts found. 

Another recently reported judgment in this area is of interest is in Re A Child (Failure of CAFCASS Reporter to follow Court determinations) [2026] EWFC 188, where the Court was faced with a situation in which a CAFCASS officer had basically failed to assess the situation in light of the content Court’s finding of fact judgment. 

Next up, Re T and F (Placement Orders: Child's Permanence Reports) [2026] EWCA Civ 902 deals with a subject that is really important to me as someone who represents a lot of parents in care proceedings: Child Permanence Reports or ‘CPRs’. In many geographical areas the CPRs are not filed in care and placement proceedings: they should be in my view, as any confidential info relating to carers etc can be redacted and the reports contain what is often really important analysis in relation to adoption decisions, which in at least one case I can recall, was not located in sufficient detail elsewhere in the evidence and was something which proved to be the focus of cross-examination. 

As Baker LJ sets out within the judgment, The Explanatory Memorandum, the Adoption Agencies Regulations 2005 governs how adoption agencies exercise their functions in relation to adoption under the 2002 Act. Part 3 of the 2005 Regulations is headed ‘Duties of adoption agencies where the agency is considering adoption for a child’. Regulation 17 is headed ‘Requirement to prepare child’s permanence report’. Regulation 17(1) provides:

‘The adoption agency must prepare a written report ("the child's permanence report") which shall include—

(a) the information about the child and his family as specified in Parts 1 and 3 of Schedule 1;

(b) a summary, written by the agency's medical adviser, of the state of the child's health, his health history and any need for health care which might arise in the future;

(c) the wishes and feelings of the child regarding the matters set out in regulation 13(1)(c);

(d) the wishes and feelings of the child's parent or guardian, and where regulation 14(4)(a) applies, his father, and any other person the agency considers relevant, regarding the matters set out in regulation 14(1)(c);

(e) the views of the agency about the child's need for contact with his parent or guardian or other relative or with any other person the agency considers relevant and the arrangements the agency proposes to make for allowing any person contact with the child;

(f) an assessment of the child's emotional and behavioural development and any related needs;

(g) an assessment of the parenting capacity of the child's parent or guardian and, where regulation 14(4)(a) applies, his father;

(h) a chronology of the decisions and actions taken by the agency with respect to the child;

(i) an analysis of the options for the future care of the child which have been considered by the agency and why placement for adoption is considered the preferred option; and

(j) any other information which the agency considers relevant.’

Regulation 14(1)(c) (referred to in regulation 17(1)(d)) requires the agency, so far as reasonably practicable, to: 

‘ascertain the wishes and feelings of the parent or guardian of the child, and of any other person the agency considers relevant, regarding —

(i) the child;

(ii) the placement of the child for adoption and his adoption, including any wishes and feelings about the child's religious and cultural upbringing; and

(iii) contact with the child if the child is authorised to be placed for adoption or the child is adopted.’

Under regulation 17(2C) and (2D), the adoption agency must send the report to its adoption panel which, under regulation 18(1), must consider the case and make a recommendation to the agency as to whether the child should be placed for adoption. The adoption agency then makes a decision about whether the child should be placed for adoption and in doing so must, under regulation 19(1), take into account the recommendation of the adoption panel.

In this case the local authority was directed to serve the CPRs on the parents’ representatives together with the ADM decision. The LA failed to do so and the CPRs were uploaded to a confidential file on the portal that was accessible to the Court but not to the parents legal teams.

Care and placement orders were then made at a final hearing and the parents acting in person sought permission to appeal, contending that the Judge’s decision was wrong, that the hearing had not been conducted fairly, and that there were deficiencies in the evidence and in the Judge’s reasoning. In addition, the parents drew attention to the fact that the child’s permanence reports had been filed with the Court but not served upon them or their solicitors and asserted that this amounted to a serious procedural irregularity. Copies of the two reports, which by this stage had been disclosed to the parents, were included in the papers filed with the appeal notices. Once it had been confirmed to the Court of Appeal that the CPRs were not served on the parents, Baker LJ granted the parents leave to appeal out of time and granted permission to appeal on one ground only, that the failure to serve the child’s permanence reports relating to the two children upon the parents prior to the making of the placement order constituted a serious procedural irregularity. Also of note was that the Appendix of the CPR contained no text.

At the appeal hearing the appeal was refused, on the basis that the information contained within the CPRs in terms of analysis was also located elsewhere in the papers:

‘I therefore conclude that, although the failure to serve the child's permanence reports was a serious procedural irregularity, it had no impact on the outcome of the proceedings. I do not accept the submission that, because of the life-changing significance of adoption, such a failure automatically renders the decision to make a placement order unjust. As in Re D, the question is whether the outcome was unjust because of a serious procedural irregularity. In this case, there was no injustice because all the relevant information in the reports was disclosed to the parties and before the court in other documents.

In reaching that conclusion, however, I am not condoning the procedural error. In different circumstances, it could have led to a successful appeal and further delay in reaching a decision about the child's future. The provision in the standard template order, which was properly incorporated into the case management directions in this case on several occasions, is important and where it is included in a court order it must be followed. In this case, however, I am satisfied that no injustice has occurred. It was for those reasons that I concluded that the appeal should be dismissed. 

In those circumstances, it is unnecessary to consider the supplementary issue about the way in which the reports in this case were compiled, with the Appendix left blank. It was not suggested that this invalidated the making of the placement order in this case, but for my part I think it a mistake that this was not completed. Regulation 17(1)(d) stipulates that the report should include the wishes and feelings of the parent about the child and the proposals for future placement and contact. Anyone reading the report, which as I have observed above is a lengthy document, is likely to find it helpful for that information to be set out separately in the Appendix. As the form makes clear, one purpose of the Appendix is to record information provided by the parents for the benefit of the adopters and, at a later stage, the child. One can imagine that in years to come an adult child, reading the report, may be particularly interested in what their birth parents said at the time the decision was made. For that reason, as provided for in the Coram BAAF form, it is appropriate for that information to be gathered in one place, as well as being incorporated into the rest of the report. ’

Whilst the appeal was ultimately unsuccessful in this case, I would caution that the situation may have been different in the event that the CPRs contained critical analysis not located elsewhere in the papers. This is why CPRs are such important documents: if you are representing parents within care proceedings then please make sure that you ask to see the CPRs.

Up next is another private law appeal, Re S-O (Children) (Relocation and Prohibited Steps Order) [2026] EWCA Civ 998. This was an appeal against a DHCJ’s decision in dismissing a mother’s application for her daughter, C, to relocate to a Gulf State to live with her and a continued PSO to prevent C travelling to stay with the mother in that state. The appeal was allowed by the COA, with Moylan LJ giving the lead judgment. 

The case involved two children, S, a boy and 14, and C, a girl aged 6. F1 was S’s father and F2 was C’s father. The mother was working in the Middle East and moved to State A in 2025, where she continued to commute to from London. She would spend 20 days in State A and 10 days in London each month. In July 2025, F2 was arrested and made subject to bail conditions following allegations by the mother of domestic abuse. The bail conditions ended in September when the police decided not to take the matter further.

F1 applied for a CAO for S to spend equal time with both parents but then applied for a PSO to prevent S from being removed by the mother from the jurisdiction, apparently in response to the mother having proposed that S move to live with her in State A. The mother then applied for an order permitting S and C to move to live with her in State A. Included in her application was a C1A detailing allegations of abuse by F2. The mother also applied for a non-molestation order under the FLA 1996 against F2. An ISW was instructed and provided a report recommending that S should not move to live with the mother but should live with F1 and spend time with the mother in the UK and in State A. The ISW did however, recommend that C was permitted to move to live with the mother in State A. The mother accepted the recommendations of the ISW, including that S should remain living in the UK with F1.

The ISW then provided an addendum report recommending that all contact between C and F2 was supervised, having discovered from F2’s previous partner that very serious findings had been made against F2 in relation to proceedings involving the children of F2 and that partner. An expert report in relation to State A made clear that there were no reciprocal treaty arrangements providing for the recognition and enforcement of any English child arrangements order made in the English proceedings, whilst any judgment in the proceedings would have ‘no relevance in any proceedings in State A’. The only route by which the provisions of an English order could be recognised and enforced would be through the parties submitting an agreement to the local court for ‘registration by way of a local consent judgment’. 

The first instance Judge heard evidence over a number of days and rejected all of the mother’s allegations of domestic abuse against F2. She said that this was ‘a case with a lack of objective, independent evidence. The mother’s case relies on her own account and largely self-reporting. There is no separate corroborative evidence’. The Judge also found a number of concerns to be present in relation to the mother’s ability to promote contact, however as Moylan LJ pointed out:

‘In making these adverse comments about the mother's conduct, the judge appeared to have overlooked the fact that the mother's revised proposals followed the recommendations of the ISW. Any criticism of the mother would have had to address the fact that she was following the ISW's advice. In addition, in his submissions during the appeal hearing, Mr Green told us that, during her oral evidence, the mother had said she would be flexible and had accepted that there should be more frequent contact.’

The Judge also noted concerns that the mother had not been in contact with F2 regarding C’s educational provision but overlooked that the mother had been permitted, by a previous order, to make such arrangements without reference to the father because of the steps he had taken which had previously disrupted C’s educational arrangements. Moylan LJ ultimately concluded that (a) that the Judge’s welfare analysis was not sufficient; and (b) that the judge's decision to continue the PSO in respect of S was not justified. Central to this was the Judge’s failure to adhere to the relevant guidance, namely in Re F (A Child) (International Relocation Case) [2015] EWCA Civ 882, where McFarlane LJ (as he then was) reiterated, at [48], what is required when the court is undertaking the ‘welfare balancing exercise’. It is an exercise:

‘in which each and every relevant factor relating to a child's welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child.’

This reflected what had been said in previous decisions including his judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 in which he had said, at [54] that:

‘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.’

Moylan LJ made clear that:

‘The court needs to consider the merits of each option, by considering their respective "internal" positives and negatives, as well as the comparative merits of the competing options. This is not a straitjacket but it sets out the overarching nature of the analysis which is required, in particular that the competing welfare options are sufficiently considered and compared in order to determine which is consistent with and best promotes the child's welfare.’

His Lordship determined that:

‘It is clear to me that the judge, regrettably, failed to undertake this exercise. She was clearly aware that this was required because, as quoted above, she said she needed to undertake a "comprehensive welfare analysis and to look at the contrasting proposals". However, when she came to that part of the judgment where this would have been undertaken she only, in fact, looked at the option of relocation and did not undertake a welfare analysis of any other option or any comparative welfare analysis of the respective options including relocation. All the judge said was that; "Refusal of relocation would mean this arrangement [i.e. the existing arrangements] continues indefinitely", adding later:

"How those arrangements are going to take place … needs to be a matter for another day, given the lack of alternative proposals put forward by the mother in the event that I … dismissed her application. It may be that she will be able to make some change to her arrangements in terms of the amount of time she works overseas. It may be that she does not and the court will need to look at the live with and spend time arrangements now that I have provided this judgment in respect of the removal application. "

With all due respect to the judge, this was not a sufficient consideration of the options available for C as part of the welfare balancing analysis. Fundamentally, there is no analysis of any option other than relocation. The judge did not consider the positives and negatives of the existing arrangements continuing which would then need to be compared with the positives and negatives of relocation. This was not a matter for another day but needed to be determined at the same time and as part of the overall welfare analysis. I would also note that the judge did not address F2's proposal that C live with him which was put forward as one of the potential options for C.

The absence of any sufficient comparative analysis can be seen, for example, from the absence of any consideration of the impact of refusing the relocation application on C's emotional needs and welfare generally in particular as set out in the ISW's evidence. The judge simply sets out that the impact on the mother of refusing the relocation application "would be likely to be significant, both personally and professionally, and this would in turn have implications for the children's welfare". She does not then go on to consider those implications. These included, as set out in the ISW's evidence, that "the welfare impact of refusal" on C would be "tangible". Further, a balanced analysis would have included consideration of other significant elements of that evidence such as that C's "primary emotional need is for consistency and day-to-day caregiving from her main attachment figure, who is her mother" rather than the "fragmented pattern of maternal care" which existed under the then arrangements; and that "[C's] needs for maternal closeness, secure attachment and routine are best supported by relocating with her mother, who can be physically present in her daily life abroad". 

There is no indication that the judge took these matters into account and, indeed, the judgment read fairly and as a whole indicates that she did not. They were important matters that needed to be specifically addressed in the judgment if it was properly to explain why the mother's application that C move to live with her in State A was rejected because another option would better promote C's welfare and was more consistent with C's best interests.

In addition, I consider that the judge's analysis of relocation was also insufficient because the judge did not sufficiently analyse the "internal positives and negatives" of relocation. The approach taken by the judge probably reflected her view that the "key factor" was C's "emotional need to retain a relationship with her father … and other family members". However, as the ISW had noted in her substantive report, in "welfare terms" "the loss of direct paternal relationships" had to be "weighed against" the benefits of C moving to live in State A. In addition to the matters referred to above, an important element of this was the mother's case, supported by the ISW's evidence, that the existing arrangements were not sustainable. This needed to be included in the welfare analysis. It may be that the judge did not consider this was necessary because of the absence of "evidence … about what options are available to the mother in terms of reasonable adjustments in her job", a point repeated by the judge in paragraph 130 (as quoted in paragraph 71 above). In my view, this was not a reason not to undertake a comparative welfare analysis although, in addition, we were told by Mr Green that the mother had been asked about this during her oral evidence and had said there was no possibility of her being able to make alternative arrangements with her work.’

And following on from this:

‘Turning to the judge's findings, including her findings in respect of the mother's domestic abuse allegations, they were an integral part of the judge's welfare decision. They cannot properly be separated into distinct parts because, as it was put by F2, issues of credibility and reliability are essential elements of a judge's decision when determining the relocation application. In this case, it would be wrong to fetter or restrict the rehearing to some parts of the parties' respective evidential cases by seeking to preserve some of the judge's findings. The judge conducting the rehearing needs to decide for themselves what weight to give such findings as he/she makes and they would not sensibly be able to do this if they were applying findings made by another judge. For example, at the rehearing, the trial judge will have to reconsider those aspects of the mother's conduct on which the judge placed significant weight, as referred to above. This demonstrates that the judge conducting the rehearing needs to be able to determine the factual foundation afresh as part of the welfare analysis.’

Moylan LJ went on to discharge the PSO:

‘The judge referred to the lack of enforcement mechanisms in State A and the effect on S if he were kept there but her analysis of the risk as to whether this might occur is essentially confined to the "red flags" referred to in paragraph 70 above. None of those matters support the conclusion that there is a real risk that the mother would keep S in State A. In addition, the judge's welfare analysis failed to consider the benefits to S of his being able to visit his mother in State A.’

International relocation cases are extremely complex and tricky: they are of critical importance from a welfare perspective. For me, this judgment acts to reiterate the crucial need to ensure that judgments in these cases undertake a carefully balanced analysis of the various pros and cons attached to each of the options before the Court. It is absolutely crucial that the relevant guidance contained within the authorities Moylan LJ refers to is followed. The relocation application in this case was remitted for a re-hearing. 

Finally,  Re E (A Child) (Special Guardianship Order: Public Law Proceedings) [2026] EWCA Civ 1167, a case in which a mother and grandmother appealed the making of special guardianship orders (SGOs). The lead judgment by Moylan LJ This appeal raises the question of the approach the Court should adopt when making an SGO at the conclusion of care proceedings, specifically when the care options before the Court are either the child returning to live with her family or the child remaining living with a local authority foster carer pursuant to an SGO. The judge at first instance considered that his task was simply ‘to decide which course will best serve the interests of the child's welfare’ and that it was not necessary for him to address either the threshold criteria in s. 31(2) of the Children Act 1989 or, although this was not expressly stated, the issue of proportionality.The appeal was allowed on the basis that the judge was wrong to apply a simple welfare balance and that he should have considered the issue of proportionality.

The subject child, E, had previously lived with his mother and then his grandmother prior to being accommodate in foster care. The local authority’s plan at the conclusion of care proceedings was the making of an SGO in favour of E’s foster carer. At the final hearing, at which the mother and grandmother both sought for E to be returned to their respective care, the judge heard evidence and gave an order judgement following the hearing, whereby he made an SGO in favour of the foster carer. The judge stated that ‘I did not consider the section 31 threshold expressly in my judgment because I not think it necessary or appropriate to make an order under section 31. I did, however, consider harm and the likelihood of harm’. This approach was flawed, with Moylan LJ commenting in relation to the significant impact of an SGO:

‘The significant effect of an SGO has been noted in a number of cases. In Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54 Wall LJ, as he then was, giving the judgment of the court (with Thorpe and Tuckey LJJ) noted, at [25], quoting from Guidance issued by the Department for Education and Skills, "the aim of special guardianship was 'to provide legal permanence for those children for whom adoption is not appropriate'" (emphasis added). In In re M [2021] EWCA Civ 442, Peter Jackson LJ (with whom Baker and Elisabeth Laing LJJ agreed) said, at [18]:

"The purpose of special guardianship is therefore to achieve permanence for the child. The term "permanence" has a special meaning in care planning, as defined in The Children Act 1989 Guidance and Regulations Volume 2: Care Planning, Placement and Case Review (June 2015) (DFE-00169-2015):

"2.3 Permanence is the long term plan for the child's upbringing and provides an underpinning framework for all social work with children and their families from family support through to adoption. The objective of planning for permanence is therefore to ensure that children have a secure, stable and loving family to support them through childhood and beyond and to give them a sense of security, continuity, commitment, identity and belonging."

The concept of permanence is also found in the requirement under section 31(3B) of the 1989 Act for a court deciding whether to make a care order to consider the permanence provisions of a care plan. These include provisions setting out the long-term plan for the upbringing of the child and the way in which the plan would meet the child's needs." (emphasis added).’

 His Lordship went on to consider the appropriate process that should be undertaken when an SGO is sought at the conclusion of care proceedings:

‘The focus of my analysis is on the approach the court should take in the circumstances of a case such as the present, namely when the Local Authority is proposing that the outcome of care proceedings should be an SGO appointing as the child's special guardian a person who is not a member of the child's family. However, it may well be that the same broad approach should be adopted in other similar or analogous situations. 

In summary, as explained further below, I consider that both the context of the proceedings and the intrusive nature of the proposed order are such that the court should adopt broadly the same approach that it would adopt when making a care order. I have arrived at this conclusion in particular because, in Re H-W Dame Siobhan Keegan LCJ (with whom Lord Hodge DPSC, Lord Kitchin, Lord Burrows JJSC and Lord Hughes agreed) said, at [45]-[46], that the intrusive nature of the order proposed in that case (a care order for three children with long-term placement in separate foster homes) meant that:

"The principles set out in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33) as to necessity and proportionality clearly apply, mutatis mutandis, also to this kind of case". 

In my view, the order proposed in the present case is within the same category of case as referred to in Re H-W, which I return to further below.

This does not, however, directly answer one of the questions raised in this appeal, namely the role, if any, of the threshold criteria in s. 31(2) of the CA 1989. Clearly, as a matter of law, it did not apply because the court did not make a care order or a supervision order. However, although this might be legally correct, I consider that the court should typically determine whether the threshold criteria under s. 31(2) of the CA1989 Act have been established before deciding whether to make an SGO at the conclusion of care proceedings. I say, typically, because there may well be cases where such a course is neither necessary nor appropriate due to the particular circumstances of that case. Although, as explained below, I consider that in the circumstances of this case the court should have done so. My reasons for these conclusions are as follows.

First, as submitted by Ms May, it is only at the conclusion of the hearing that the court will be determining what order to make. In the present case, one of the options which was being pursued was E's return to live with the mother and/or the MGM with a supervision order. In order for the court to be able properly to consider those options, the court needed to determine whether the s. 31(2) criteria were established. I can see the force in Ms May's submission that, by saying that he did not need to consider the s. 31(2) criteria in the course of his judgment because he was not making an order under s. 31, the judge could be said to have effectively predetermined that the option of returning E to the mother and/or the MGM with a supervision order was not realistic. This needed to be properly considered and explained in the judgment. The court can, of course, rule out a proposed care option as not being a realistic or viable option before the final determination of care proceedings but there are a number of Court of Appeal authorities which have warned against this being done without proper consideration: see for example, Re B [2022], at [43]-[44].

Secondly, while this may not be required as a matter of law, the purpose of the threshold criteria, as referred to above is "to protect both the child and his family from unwarranted interference by the state", Re J at [44]. Baroness Hale went on to say, at [45]:

"The Review of Child Care Law: Report to Ministers of an Interdepartmental Working Party (1985) (DHSS), which led to the 1989 Act, rejected a broad welfare test, because it would not offer the degree of statutory protection against unwarranted interference which the preceding House of Commons Select Committee Report on Children in Care had considered essential: para 15.10. "

This is also reflected in what Baroness Hale said in Re B [2013], at [186]:

"However, the reason why the threshold is crossed forms part of the court's reasons for making the order, and these must be "relevant and sufficient". It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level …" (emphasis added)

The making of an SGO, as in the present case, can, in my view, properly be described as a significant interference by the state in the same general terms as a care order or a supervision order. It may not be as significant as an adoption order but it provides for a form of permanence in a child's living arrangements and family relationships in a manner which constitutes a very significant interference in the family life of a child and her birth family. For example, in s. 14C(1), as set out above, the special guardian exercises parental responsibility to the exclusion of any other person with parental responsibility. It is, therefore, an "intrusive" order, using that word in the sense that it is used in Re H-W, at 46 (as quoted below). The court's approach, therefore, needs to reflect these elements. Adopting the same or a similar approach to that required by s. 31 would serve to ensure that the court properly recognised the significant effect of the proposed order and sufficiently analysed whether it was necessary and proportionate.

Thirdly, I consider that adopting this approach would also serve to ensure that the court's analysis and determination was founded on a sufficient factual foundation in particular in respect of the issue of harm and the level of the harm which the child has suffered or is likely to suffer. This would be part of the court's analysis in any event, because harm is a relevant factor in the welfare checklist and, as referred to by Peter Jackson LJ in K-H (Children)(Care Orders: Proportionality) [2025] EWCA Civ 1368, at [59(2)], the court should adopt "the same approach … when assessing the likelihood of harm for the purpose of the s. 31 threshold and when assessing risk under the s.1(3) welfare checklist". 

However, adopting the s. 31(2) approach as part of the court's determination would, again, properly reflect the significant, and intrusive, effect of the proposed order and that the exercise in which the court is engaged is more than a simple welfare balancing exercise. The purpose of making threshold findings was explained in Sir Andrew McFarlane P's judgment in Re B [2022], at [17]:

"[17] The reason why the former President and this court in these and other judgments have stressed the importance of detailed and clear findings on threshold is not one of form for form's sake. The task of evaluating threshold goes to the core of the judicial exercise in every case. It is, in essence, what the case is about. Unless the court has a clear and detailed understanding of the basis upon which it finds, if it does, that a particular child "is suffering or is likely to suffer significant harm", substantial difficulties will be encountered when the court then moves on, as it must, to evaluate future risk of harm at the welfare stage. Public law proceedings under CA 1989, section 31 are engaged in the business of "child protection". Unless a court has made detailed findings as to what it is that a particular child is to be protected from, in terms of significant harm, it is unlikely that the court will be able to undertake a focused and bespoke evaluation of any plan to protect the child from that harm."

In my view, this applies, by analogy, with the making of an SGO in favour of a foster carer. It is a sound route for determining the issue of harm in this context as well. It would also support the need for the court's approach to adhere to the principles set out in Re B [2013]. 

I would add, finally, that it would help ensure that the court properly addresses in its judgment one of the key elements, as referred to by Peter Jackson LJ in Re B [2022], at [59(6)], namely making "findings of fact about any disputed matters that are significant for the decision".

As referred to at the start of this part of my judgment, my conclusion rests significantly on the need for the court properly to address the necessity and proportionality of the type of order which the court made in this case. In Re H-W, in so far as relevant to the appeal to the Supreme Court, the court was concerned with care proceedings in which the Local Authority had sought, and the first instance judge had made, care orders with the care plan for the three relevant children being placement in separate foster homes. It can be seen that those orders are no more significant in their effect than the SGO which was made in the present case.’

So where an SGO is sought within care proceedings, the Court must determine threshold issues and engage upon the appropriate proportionality evaluation. Sometimes I think we forget just how interventionist an SGO is in the lives of parents. This judgment acts as a stark reminder of that.