Children law update - October 2025

Back to work after the summer vacation. No doubt the first question you all ask when coming back after a long break is ‘what important bits of case law and guidance have I missed while I’ve been away?’. Or is that just me? Even if it is just me, I have gone to the trouble of writing what I hope is a fairly useful summary of relevant, important and interesting judgments that have arrived since the last update was published at the start of the summer. 

So kicking off this update is a really unusual case. Re G (A Child: Scope of Fact-Finding) [2025] EWCA Civ 1044 is an appeal judgement in which two of the big hitters, the Dons of family law, Peter Jackson LJ and Jonathan Baker LJ, disagree. The remaining LJ, Lord Justice Bean decides to go with PJLJ, so the appeal is refused, but it is still a very finely balanced decision. The relevant facts were that in care proceedings relating to a young mother’s second baby, a Judge was faced with the question of whether or not to direct a fact-finding hearing in relation to the death of the mother’s first baby, Z, which had occurred 6 ½ years earlier at a time when the mother was herself a child. The Judge decided that it was not. The local authority and the children’s guardian appealed and the issue for the COA was whether the judge's conclusion was wrong or unjust.

Peter Jackson’s conclusion is summarised in the opening paragraphs:

‘I would dismiss the appeals. This was a difficult and intensely case-specific decision. The proceedings were at week 18 and there had been five hearings, all conducted by the judge himself. He was therefore familiar with the mass of evidence about the family history over the years, and with the shape of the case, by which I mean the range of realistically possible outcomes and the means by which they might be reached. In short, he had a feel for the case. He directed himself correctly in law and he took all relevant factors into account. It follows that we could only intervene if the only course open to him was to make findings of fact about the first child's death. As to that, the appellants had arguments, substantially based on logical reasoning, and the judge addressed them. Their arguments might have prevailed, but the reality of the case included the fact that this baby has been in her mother's care since birth and that there is no present intention to separate them; further, that the process of investigation itself would be exceptionally lengthy and onerous. I consider that the judge's decision was one that was open to him and that, taking account of the latitude that is due to informed judicial case management, it was at all events not wrong.’

The mother’s deceased child, Z, had been subject to a Coroner’s inquest which recorded that Z had died from a head injury and returned an open verdict. The CPS determined to take no further action and there was no criminal prosecution.

Within the care proceedings that related to X, the mother was subject to a parenting assessment report produced by the residential placement where she had been placed with X. It noted that X was thriving, that the mother was capable of meeting X’s practical needs and that there was a strong emotional bond between them. However, family and professional support was deemed to be required for at least 12 months and the author of the report was concerned about whether the mother would engage fully and openly as the mother had struggled to work with professionals whose views did not align with hers.

The Judge at first instance ruled that a fact-finding hearing in relation to Z’s death was not necessary in order to determine welfare issues relating to X. The summary of the lower Court’s reasons in this respect was:

‘(1) The issue does not need to be determined before the local authority can consider safety planning, risk assessment and their final evidence. It is not accepted that in principle the degree of risk to X would be greater if a finding of loss of control in relation to Z was made. That would confuse risk with outcome. It is also not accepted that the nature of risk is different if such a finding is made. Assessment of the mother does not therefore require the issue to be determined first. 

(2) The absence of criminal prosecution does not of itself justify fact-finding by this court.

(3) There is no basis for believing that a failure to make findings now will by necessity cause future difficulties. Professionals are able to assess the fundamentals of risk without a need to determine the actions of the mother 7 years ago. A determination would not have an impact on the ability to dispose of the case justly. A finding would in all likelihood necessitate a further assessment. There is a danger that this would turn out to be a circular process. The focus of the case should be on the circumstances now as opposed to then.

(4) The ultimate conclusion against fact-finding is supported by other factors, which standing alone would not have been conclusive themselves. They include delay, cost, impact on the mother, and resultant impact on X. There are residual concerns, arising from the passage of time, about the fairness of any fact-finding hearing.’

Peter Jackson LJ rejected the grounds of appeal advanced on the basis of the following analysis:

‘As noted above, the appellants' central argument is that, because the court is required to assess risk on the basis of proven facts and not on assumptions or suspicions, the judge was therefore obliged to find that the risks to X could not be properly assessed without a determination of whether the mother was responsible for Z's death. Mr Twomey argued that professionals and the court could not properly answer any of the four Re T questions. Shorn of a finding about Z, everyday findings about the mother's volatility, aggression and impulsivity would be 'a world away' from a finding that she might pose a fatal risk to X. Further, the judge's working hypothesis that Z's death was a result of impulsive behaviour, and not something more sinister, was speculative in the absence of a trial.

In my view the judge was entitled to reject those arguments for these reasons. 

In the first place, case management decisions always require judges to make reasoned projections about whether or not a direction will promote the over-riding objective of enabling the court to deal with the case justly, having regard (in a family case) to child welfare. That calls for a comparison between the likely realistic outcomes at each stage of the proceedings if a direction is or is not made. In making the comparison, the court takes a fair and practical view of the evidence and the inferences that it might bear. That is right and proper, and it does not amount to a mini-trial. 

Here, the realistic range of fact-finding outcomes were: (a) a finding that the mother was responsible for Z's death, (b) a 'pool finding' that included the mother, and (c) a finding that the allegation was unproven. As to that, the judge sensibly proceeded on basis (a) at this stage in the light of the complexion of the inquest evidence. 

For the same reason, the judge understandably proceeded on the basis that the evidence suggested an impulsive shaking event, as opposed to sustained or cruel mistreatment. That reading was supported by the medical evidence and was soundly based in the court's general experience. It was also supported by the way the local authority had pleaded its case, as paragraph 2 of the revised threshold document, cited above, asserts that the cause of Z's injuries was abusive head trauma, consisting of shaking and/or impact followed by collapse….. 

(His Lordship went on to cite an exchange between counsel and the Judge at first instance)

….In the light of all of these matters, the judge was on solid ground in testing the matter with reference to a potential finding that Z was injured during a momentary loss of control by his mother. That projection was based on an appropriately high-level view of the evidence, and not on speculation. Indeed, given the overall shape of the evidence, it is the new argument that a trial might elicit something more sinister that is speculative. 

I also consider that the judge was entitled to reject, for the reasons he gave, the core submission that the risks to X could not be properly assessed without a determination of whether the mother was responsible for Z's death.’

His Lordship went on to state that:

‘It is at this point relevant to note the difference between the threshold conditions under Section 31 and the welfare decision under Sections 1 of the Children Act 1989 and, if an application for a placement order were to be made, the Adoption and Children Act 2002. The threshold is to be judged at the date when protective measures were taken, here January 2025. The welfare determination, of which risk assessment is a vital component, will be made at the end of the proceedings. That therefore allows the court to take account of all of the evidence, including post-threshold evidence about the mother's parenting throughout X's life.

Like the judge, I reject the submission that, without a finding about Z's death, risk assessors including the court cannot effectively consider the full range of risks to X. Mr Twomey's submission is that it would be 'out of bounds' to take account of a future risk of maximum gravity without a past finding of maximum harm. I do not accept this. It is common experience that very serious harm may befall a baby at the hands of a carer who is "easily triggered", "quick to anger" and "without coping mechanisms". Risk reduction or management would be further affected if it were additionally shown that there is "a long and consistent description of [the carer] being emotionally labile, hostile, angry and non-collaborative". Of course, characteristics of this kind might or might not lead an assessor or a court to find that the risk to a particular child was unacceptable. That would depend on the case. The court has, in Lord Nicholls words, to found its decision on the likelihood of a future happening on a basis of present facts and the inferences fairly to be drawn therefrom, with emphasis on the infinite range of the facts which may be relevant. Here, the judge reached a proper conclusion that care planning and risk assessment would not materially change as a result of a finding about Z's death. A valid risk assessment could take place on the basis of the long-standing evidence about the mother's character and an assessment of her current parenting of X. An assessment of what happened to Z in 2018 was not necessary for that purpose. 

In contrast to this case, there will be situations where proof of the threshold, and thus the very ability to take protective measures. depends on a single issue. For example, where a child has died or been injured in circumstances where no other allegation is made against the parents, as occurred in Re H and Re P. In other cases, the index event has come 'out of a clear blue sky'. That, as was said by Lord Nicholls in Re H and by the judge in this case, is a very different situation, because a finding about the index event is then essential for the assessment of risk. That is not the case here.

It is also a misconception to consider that the four Re T questions could not be satisfactorily addressed. As I have explained, the judge was entitled to proceed on the basis that the type of harm that might arise includes very serious physical harm. The likelihood of it arising could fairly be judged from an intensive assessment of the mother's long-standing character traits and present parenting. The consequences for X of an assault might be of maximum severity and, contrary to the appellants' submissions, the judge took full account of that. The reduction or management of risk will depend upon an assessment of the mother's insight and her ability to accept support and guidance.

The plain fact is that a decision about X's future is likely to be a difficult one, regardless of what may have happened to Z. It was not unreasonable to think that it might be made easier by deferring it and undertaking a lengthy investigation into Z's death. Indeed, the judge accepted that a finding might be "helpful", but he was entitled to conclude that it was not necessary, and that, taken alongside the heavy disadvantages of fact-finding, it should not be attempted.’

A very detailed analysis requires full reading and I have merely provided the ‘headlines’ above. Baker LJ however, took a very different view:

‘In Re F (A Child: Placement Order: Proportionality) [2018 EWCA Cib 2761and Re K (Children) (Placement Orders)  [2021] 2 FLR 275, Peter Jackson LJ identified four questions to be answered by a court when assessing risk of future harm in care proceedings under Part IV of the Children Act 1989:

(1) What is the type of harm that might arise?

(2) What is the likelihood of it arising?

(3) What consequences would there be for the child if it arose?

(4) What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did?

In the present case, the local authority asserts that: (1) the type of harm which the child X might suffer includes serious head injury caused by shaking; (2) there is a real possibility that she may suffer such an injury; and (3) the consequences would be that she would suffer permanent brain damage and possibly death. The central issue between the parties is (2), the likelihood of such an injury arising. The local authority's case is that there is a likelihood because the mother inflicted the head injuries that led to the death of her first child, Z, in part as a result of her personal circumstances which have not substantially changed in the intervening seven years. The mother denies causing Z's death. It is her case that there is no likelihood of X sustaining such an injury. In those circumstances, as Mr Wiliam Tyler KC submitted in the course of the appeal hearing, whilst the events in 2018 cannot be ignored entirely, it would be impermissible to proceed on a suspicion or quasi-finding that she was responsible for inflicting Z's injuries as a basis for assessing risk.

Peter Jackson LJ has concluded that the court can safely answer question (4) and identify the steps which could be taken to reduce the likelihood of harm arising without a fact-finding hearing into the circumstances of Z's death. I have come to the opposite conclusion.’

like PJLJ’s analysis, Baker LJ’s reasoning requires full reading, however in summary, after going back through a whirlwind summary of the relevant authorities, His Lordship said this:

‘In my view, an analysis of these principles clearly demonstrates the answer to the issue arising in the present appeal. The local authority asserts that the mother inflicted the injuries that led to Z's death and there is therefore a real possibility that X will suffer significant harm through inflicted injury. The mother denies inflicting Z's fatal injuries and says that there is no real possibility that X will be injured in her care. The issue of whether there is a real possibility that X will suffer inflicted injuries in the mother's care therefore turns principally on the question whether the mother inflicted Z's injuries. A fact-finding hearing into the circumstances of Z's injuries and death is required to determine: (1) the type of harm which X may suffer in her mother's care; and (2) the degree of likelihood that she will suffer that harm, bearing in mind that, if the mother was responsible for Z's injuries, the degree of likelihood required for the threshold to be crossed in X's case will be less, given the "nature and gravity of the feared harm".

As Lord Nicholls recognised in Re H, even if a court concludes that the harm alleged to have happened in the past did not occur, it may conclude that there is a real possibility that the child will suffer harm in the future although harm in the past has not been established, where the evidence establishes, on a balance of probabilities, what Lord Nicholls described as "a combination of profoundly worrying features affecting the care of the child within the family". In the present case, leaving aside the circumstances of Z's death, there are a number of features of the mother's background, character and current circumstances which are relevant to the question of whether the child X is at risk in her care and her capacity to care for the child. She has a history of significant mental health issues. She has been diagnosed as suffering from chronic complex PTSD with psychotic features. She has smoked skunk cannabis for many years, including during her pregnancy with X. Dr Van Velsen observed that the mother had "a long and consistent description of her being emotionally labile, hostile, angry and non-collaborative". She has shown a confrontational and sometimes hostile attitude to a range of professionals. She has been described by the local authority as "highly triggered" and quick to anger with no adequate coping mechanisms in place. In her own childhood, she experienced neglect and abuse and was exposed to domestic violence. Her brother died at the age of 5 months, the cause of death being sudden infant death syndrome. It may be that, taken together, those features give rise to a likelihood that X will suffer significant harm in her mother's case. But the likelihood would be higher, and the potential harm of much greater significance, if it is established that the mother inflicted the injuries that led to Z's death. Without a finding that the mother inflicted Z's fatal injuries it is extremely unlikely that the court would conclude that there was a real possibility that X may suffer harm of that type. With such a finding, the court may conclude, on the totality of the evidence, that there is a real possibility that X will suffer harm of that type, having regard to the degree of likelihood required to cross the threshold in cases involving harm of that type.

At the welfare stage, the court will proceed on the same basis when having regard, as required by s.1(3)(e), to the harm which X is at risk of suffering. Those professionals carrying out assessments to assist the court's decision about the child's future care arrangements – which may include, in addition to the local authority social worker and children's guardian, an independent social worker and psychologist – will take into account any finding as to the circumstances of Z's death. In the light of that finding, they will scrutinise in careful detail the evidence about the mother's current circumstances. They will interview the mother and assess her level of understanding and insight. They will advise the court as to the nature and extent of any future risk to X and what steps can be taken to alleviate that risk to enable the mother to care for X safely. Without any finding one way or the other as to whether the mother inflicted Z's injuries, the professional advisers will be obliged to disregard it. In my view, any risk assessment carried out in such circumstances would be unfair and dangerous to the child.’

Baker LJ then went on to find that the Judge had been wrong in his conclusion not to convene a fact-finding hearing for a number of reasons:

‘First, he was wrong to accept the submission made on behalf of the mother that the risk assessment and the resultant care planning did not require a clear definition of the outcome or outcomes that might follow. In order to assess risk, it is first necessary to identify the outcome – the type of harm – in issue. A finding of impulsivity on the part of a child's parent does not warrant a risk assessment unless the "range of risk outcomes" of the impulsivity includes the real possibility that the child will suffer significant harm. "Those working in such a setting" would only be entitled to include the risk of serious physical injury and death within the range of outcomes if it was agreed by the parent that such an outcome was a real possibility or after the court had reached that conclusion on the basis of findings as to past events. To include such a possibility within the range of outcomes without agreement or a finding would be manifestly contrary to the principles set out above. The judge's analysis ignores the point emphasised by Butler-Sloss LJ in Re M and R and by Baroness Hale in Re B that the Act speaks in s.31(2)(a) of significant harm which the child "is likely to suffer" and in s.1(3)(e) of any harm which the child "is at risk of suffering". As Lord Nicholls said in Re O and N, "for the purpose of satisfying this threshold level of risk in cases … in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened."

Secondly, the judge was wrong to conclude that the degree and nature of the risk to X would be no greater if a finding of loss of control in relation to Z was made. As Lord Nicholls explained in Re L, a real possibility means "a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case". As Baroness Hale added in Re B, "Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm." A finding that the injuries to Z were inflicted by the mother would plainly be relevant to the degree and nature of the risk to X.

Thirdly, the judge was wrong to proceed on the basis that the risk that X would suffer serious physical injury leading to death fell into "a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour". If it is the case that the mother inflicted the injuries which led to Z's death, the risk to X would not be adequately covered simply by an agreed finding that the mother has the capacity to act impulsively. Many people act impulsively. The central issue in the assessment of risk in this case is whether the mother's impulsivity may lead her to act violently to the extent of causing the death of a child. A not insignificant number of parents have characteristics identified in this mother – a disturbed childhood with a history of being neglected and abused, significant mental health issues, a history of drug abuse, a confrontational attitude to professionals, and being emotionally labile and quick to anger. Very few of them inflict fatal injuries on a child. The likelihood of someone with those characteristics, who is liable to act impulsively, inflicting fatal injuries on a child through shaking will in all probability be greater if that person has done it before. A finding to that effect will obviously be relevant to the assessment of risk.’

Both judgments are well thought out, measured and entirely logical. So which one is right? That is for you to decide dear readers (he says, ducking the issue), however I think what I can say is that my heart says Peter Jackson: is there really a need to engage on a lengthy fact-finding exercise when probable finding that X was likely to suffer 'significant physical harm' arising from his mother's impulsivity was a sufficient basis for future risk assessment and, if applicable, risk management? But then my head says, is there not also inherent logic in Baker LJ’s view that the judge was wrong to proceed on the basis that the risk that X would suffer serious physical injury leading to death fell into ‘a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour’? It is like being asked who is the best singer song-writer: Kate Bush or Stevie Nicks? Or who is the better band: Nine Inch Nails or Deftones? You simply cannot give a right answer to a question like that.

That was a long summary for a single case, but I think it is important to get as much of that judgement in as possible. Next up, Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011. This was an appeal brought by the subject child S, aged 14 years old. S was taken by his parents, together with an older sibling, from their home in England to visit relatives in the Republic of Ghana. After a short time, S’s parents and sibling returned to the UK, leaving S in Ghana in the care of other family members who enrolled him in a boarding school there. S’s parents took his passport with them back to the UK, leaving him effectively stranded in Ghana. S issued wardship proceedings which Hayden J then dismissed on the basis that the parents’ decision to leave S in Ghana in a boarding school was within the lawful remit of the exercise of their parental responsibility (S had allegedly become involved with some activities in the UK which the parents asserted placed him at risk). Hayden J concluded that:

‘Though I deprecate the parents' deception in getting S to Ghana, I have no doubt that he would not have gone willingly. I recognise that they felt that they had no choice and that the greater risk of harm would be for him to remain in the United Kingdom. The decision falls within what I regard as the generous ambit of parental decision taking, in which the State has no dominion. Accordingly, though the parents require no encomium from me, I hope it is of some comfort to them that, having heard all the evidence, I share their view of where their son's best interests lie. The observations of Lord Templeman (see para. 17 above) remain apposite, some 37 years later.’

The President held that Hayden J’s fell into error in conducting his own welfare analysis, which may have ‘resulted from inadvertently coming to see the issues in the case from the parents’ perspective.’ The President considered the issue of Gillick competence in the context of this case, concluding that the decision in Gillick is limited to medical treatment issues:

‘Having considered the issue during the hearing and since, I am clear that Ms Foulkes is correct that, in terms of its legal impact, the decision in Gillick is limited to the ability of a young person to give autonomous valid consent to medical treatment. The purpose of the decision is to offer clarity for the benefit of medical practitioners who require valid consent for a proposed procedure. Lord Scarman was plain in limiting the context of the principle:

'I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.'

It is also right that, over time, the phrase 'Gillick competent' has been used more loosely to describe the age and maturity of young people who are seen as being capable of making informed decisions as to their future in a range of situations wholly unconnected with medical treatment. An example of this is the use of the phrase by Cobb J in Re S, but, it must be stressed, that Re S, whilst not concerning consent to medical treatment, was specifically focused upon the capacity of a the 'child' in that case to give valid consent to adoption. Cobb J was not referring to, or deploying, the concept of Gillick competence in the course of making a CA 1989, s 1 determination as to the child's welfare – which is the situation in the present case.’

In terms of Hayden J’s welfare analysis, the President concluded that the Judge had fallen into error on the following basis:

‘In November 2024, the judge had adjourned the proceedings in order to obtain more information on possible options for S' care in England. Yet, by the time the case came back before him in February, there had been little or no progress in clarifying those options, save that it was by then clear that local authority foster care would not be available. The father's offer to move into separate accommodation with S remained simply an idea rather than a firm plan. The prospect of S moving to live with an aunt had, at least so far as evidence before the court is concerned, not progressed at all and remained a 'known-unknown'. There was thus no 'Plan A', let alone a Plan B or C, for S' care in England for the court to consider. Why, if the court had been justified in adjourning the proceedings in November in order to obtain more information, was it necessary to conclude matters with a final order in February, when the looked-for information still remained outstanding?

The judge was correct in his analysis rejecting Ms Fottrell's suggestion that the court should direct the local authority to file a further s 37 report. But, if more welfare related information were needed, using s 37 was not the only option. The court could have directed the local authority to file an ordinary welfare report on placement options under CA 1989, s 7. It could have directed the parents and/or the aunt to file statements about the possibility of S being placed with her.

By making a final determination at the February hearing, when key information remained outstanding, and when it was not necessary to do so for any other reason, the court adopted a course which was almost bound to lead to S' application being refused. In contrast to most other forms of civil litigation, where the court will passively react to the evidence that each party may file, in wardship the court itself has parental responsibility for its ward and that responsibility carries with it a positive duty to obtain further evidence or information if, in the interests of the ward, that is needed. If, after further investigation, it remained the case that there was indeed no viable plan for S to be cared for safely in England, then the outcome of the proceedings might be clear, but, in my view, it was premature for the court to come to a final decision in February.

Turning to the second area of concern, it is clear that the judge engaged fully with the parents, particularly the father, and the view that they had formed that S was involved in, or at least on the edges of, gangs and criminal activity. He made findings of fact which mirrored the parents' concerns and he evaluated the risk of harm to S if he were to return to England as being of a high order. Conversely, it is much harder to identify the degree to which the judge engaged with S and his wishes and feelings. To an extent, the court's ability to connect with S was limited by a number of factors: S did not wish to engage with the court proceedings directly, he did not give evidence or wish to communicate with the judge in any way other than to file statements through his lawyers. In addition, whilst the court had the s 37 report, the account of S' wishes and feelings in that document is limited to one WhatsApp call made in October 2024.

Despite understanding the filters that were in place between them, the court did have a clear account from S in his statements of his experience of being taken to Ghana and left there, his experiences in Ghana since that time and his strong desire to return to England. It is, unfortunately, difficult to reconcile the account given by S in his statements with the judge's description of the position at paragraph 42 of the judgment. The fact that S was desperately unhappy in Ghana and fervently wanted to return to England was, in part, what the case was all about. It was why this resourceful young person had made contact with London solicitors and launched his own wardship proceedings. Whilst that side of the case obviously fell to be balanced against the risk of harm should his wishes be fulfilled, it was incumbent upon the judge to 'hear' S clearly and to demonstrate that he had put the boy's strongly held wishes and feelings properly in the balance; indeed, the judge had expressly advised himself that S' acknowledged 'Gillick competence' in this matter required his views to be factored into the welfare analysis. As Ms Foulkes' concession demonstrated it is, regrettably, not possible to identify from the judgment that the judge did so. 

The third area of concern is that the judge failed to identify sufficiently any harm, or risk of harm, to S arising from his experience of being taken to Ghana and left there, and/or arising in the future if the court were to refuse his application for a return order. The judge did hold that the impact of these experiences on S had been very distressing for him, and that the move to Ghana had been a big cultural shock to the boy. The description of life in Ghana in paragraph 42, however, waters down S' account to one where he is said to baulk 'at some of its inconveniences', with the judge filling the rest of the paragraph with apparent positive aspects for the boy arising from his time there. At no stage does the judge evaluate whether there has been, or might be, harm to S arising from these events, or from a further enforced stay in Ghana if the application were refused. 

The need to balance the undoubted harm arising from the judge's findings about life in England, on the one hand, against the wishes and feelings of this capacitous 14 year old boy, together with any harm or risk of harm arising from a further stay in Ghana, on the other, was essentially what this case was about. Ms Foulkes is correct in stressing that the judge found that S was at risk of suffering 'greater harm' if returned to the UK, but such a conclusion could only be sound if it were preceded by sufficient evaluation of harm arising from a continued enforced stay in Ghana.’

The reason I find this case so interesting is the comments made by the Court of Appeal in relation to the decision in Gillick. This judgment does serve as a welcome reminder that the decision in Gillick applied to a category of cases involving consent to medical treatment: the judgment in Gillick did not deal with circumstances or situations extending beyond that issue, in particular, the concept of Gillick competence cannot be deployed in the course of making a welfare determination in the context of s.1 CA 1989:

‘In the context of this case, 'Gillick competent' is no more, nor no less, than a convenient label to indicate that S has sufficient maturity and understanding to form his own view as to where he may live. His 'wishes and feelings' are matters that the court is specifically required to take into account by CA 1989, s 1(3)(a). They are to be considered 'in the light of his age and understanding'. The fact that all parties before the judge accepted that S was Gillick competent was a factor that should have been given appropriate weight by the court in its overall welfare evaluation. The wishes and feelings of a young person who is so regarded are likely to attract more weight, and, depending on the issue in question and the circumstances of the case, in some cases significantly more weight, than that attaching to the wishes and feelings of a younger or less mature child. But, as a matter of law, it is wrong to assert, as the appellant's 'fifth proposition' asserted, that the wishes and feelings of a Gillick competent young person can only be overridden if the court finds clear and compelling reasons for doing so. As with each of the other elements in any holistic welfare balance, all will turn on the weight that is attributed to each of the relevant factors.’

Moving on to the issue of post-adoption contact, which for me is one of the most important issues currently cropping up on the family law landscape. The Court of Appeal considered the issue in Re S (Placement Order Contact) [2025] EWCA Civ 823. This was an appeal against a decision of a judge to make a placement for adoption order but decline to make an order under the Adoption and Children Act 2002, s 26(2)(b) for sibling contact. The decision arose at the conclusion of care proceedings relating to two brothers, R and S, aged 8 and 2 years. Both boys were to be subject to care orders, but only the younger one was to be the subject to an order authorising his placement for adoption. The social work evidence and the evidence of the Guardian was that direct contact between the siblings would be the optimal outcome after adoption. 

The lead judgment from the President gives a detailed summary of both the applicable legal framework, namely s1, 21, 25, 26, and 27 of the ACA 2002 and the lead cases dealing with these sections of the legislation. The President set out the legal context of post-placement order contact, observing that:

‘From a range of perspectives, it is possible to discern a clear shift over recent years in the direction of travel in understanding the approach to be taken to the issue of post-adoption contact. This shift has been driven by research (from a social work and psychological perspective) into arrangements that best meet the complex and life-long needs of children who are to be placed for adoption. The direction of travel is well delineated in the detailed analysis given by Baker LJ in Re R. It is underpinned by the extensive research of Professor Neil and others (both domestically and internationally). It was described in detail and taken up in the recommendations of the PLWG, and, importantly, it is endorsed by CoramBAAF, which has recently enhanced the focus on arrangements for a child to 'stay in touch' with family members post-adoption.

The question of how this shift in understanding should be reflected, if at all, by the court in making orders under ACA 2002, s 26 is at the centre of this appeal, and it is a difficult one. The difficulty, in part, arises from the binary nature of a court's decision whether to make, or not to make, an order, where the underlying factors are in essence subtle and, to a large extent, involve looking into the future when a key element of that future, namely the attitude of specific potential adopters, is a known-unknown. It is easy to understand how courts may opt to play safe and decline to make a s 26 order, when faced with the 'default opposition' identified by the ALC, but, as was submitted, a court should consider whether the evidence in the case before it establishes grounds for holding that would-be adopters are likely to be deterred or whether, as the ALC submitted, research does not, in fact, support that conclusion.

In terms of potential adopters possibly being deterred from pursuing interest in a child who is waiting to be placed, it was concerning for the court to be told that the information disclosed through the online family-finding network did not differentiate between parental contact and sibling contact, with the entry simply recording that there was a requirement for ongoing 'contact' – irrespective of whether this was limited to sibling only. The possibility that would-be adopters, who might well contemplate sibling only contact, are put off by the catch-all label of 'contact', is an unwelcome further complication when a court is trying to discern the impact of making a contact order.

But, difficult though the issue may be, it would be wrong for the risk of deterring potential adopters to be the determining factor in each and every case. That this is so is demonstrated by the decisions of the Court of Appeal in both Re P and Re R. Wall LJ and, nearly two decades later, Baker LJ were both right to hold that it is the responsibility of the court to make orders for contact if they are required to meet the child's welfare needs, as determined under ACA 2002, s 1. The position of potential adopters should not, to use Baker LJ's words, obviate the court's responsibility to set the template for contact at the placement order stage. There will be cases where the importance of preserving a measure of direct sibling contact is such that the court should stipulate that that is so in an order, rather than leaving it to the adoption agency and adopters to negotiate. In other cases, the comparative importance of maintaining contact will be secondary to achieving an adoptive placement, and making a formal order may not be justified.’

For me, the critical points from the President are the following:

‘The need for a bespoke analysis of the future contact arrangements in each case for each child, as required by the statute, cannot be too firmly stressed. If, where some continuing direct sibling contact is justified, courts are, astonishingly, fixing the level at six times per year simply because that was the rate endorsed by the Court of Appeal in Re R, they are wholly wrong to do so. Just as the decision whether an order is necessary will turn on the particular facts of each case, so too will the detailed contact arrangements.

Finally, in terms of general observations on this issue, I wish to endorse Ms Conroy Harris' valuable suggestion that a form of s 26 order which recognised the importance of continuing contact, but allowed for a significant degree of flexibility, might be the most appropriate means of meeting a child's needs in some cases. An express order for finite contact arrangements, specifying the number and circumstances in which it is to take place, may not be apt in some cases. Given the number of uncertainties in play at the time that a placement order is being made, a more flexible statement of the road map for future contact that the court has determined for the child may well be more appropriate. In such cases, rather than having an order for contact in concrete terms, the court might record its views, and its endorsement of the future contact plans, in a recital to the placement order. Although whether to make, or not to make, an order is a binary choice, the terms of any order where justified can, and should, be used to establish flexibility over the contact arrangements where this is justified. Where a precise order for contact may not be appropriate, courts should therefore be encouraged to use recitals in a placement order and/or a s 26 order, setting out in short terms its welfare conclusion as to future contact.’

There is no ‘one-size fits all’ approach to this issue and any welfare analysis focussing on post-adoption contact must be bespoke and considered in line with the individual needs of the subject child/children in the case before the Court. 

The appeal in this particular case was dismissed, with the President determining that:

‘The judge was fully immersed in the detail of this case after two full hearings and having delivered two thorough judgments. Against that background, he understood and accepted the professional evidence about the impact of making an order for contact in this case. In contrast to the factual matrices in Re P and Re R, the maintenance of contact between R and S was, in the local authority's view, which the judge accepted, that it 'should be promoted and would ideally be put in place' but that it 'should be seen as a desirable element rather than an essential'. He was satisfied in the good faith and professional resolve of the social work team on this issue. In the circumstances, it is simply not possible to hold that the judge was wrong in applying s 1(6) as he did and declining to make an order in this case.’

This update has already extended beyond the page count I am meant to limit myself to, however there is one particular case of interest that I am going to include, which is the Pool J decision in Newcastle CC v JK & Ors (Care Proceedings: International Abduction: Evidence from Abroad) [2025] EWHC 1767 (Fam). The facts of the case don’t require setting out, with the issue of interest (for me anyway!) being that of evidence being given on a remote link from abroad. The Court concluded that evidence could be received by video link from Austria from the father and paternal uncles, notwithstanding the correspondence from the FCDO (which had not been able to obtain agreement from the government of Austria to its request to allow its citizens or residents to give evidence via video-link to a UK tribunal. By way of background FPR PD 22A annexe 3 paragraph 5 reads as follows:

‘It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.’

Poole J identified the following factors as being relevant to the decision before him within the Family proceedings:

‘Different considerations apply to family proceedings than to an administrative tribunal and in that respect, and more generally, I take into account the following factors:

a. The Children Act 1989 (CA 1989) s1(1) provides that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration.

b. CA 1989 s1(2) requires the Court to have regard to the general principle that delay is likely to prejudice the welfare of the child.

c. In public law proceedings the Court is subject to a statutory obligation to complete care proceedings in 26 weeks – Children Act 1989 s32(1)(a)(ii) introduced by the Children and Families Act 2014 s14;

d. The Family Procedure Rules enjoin the Court to manage cases so as to give effect to the overriding objective including to ensure that cases are dealt with expeditiously and fairly and saving expense. 

e. Taking evidence from abroad without the other country's permission is not unlawful. In Raza v Secretary of State for the Home Department [2023] EWCA Ci 29, the Court of Appeal held:

" Neither Nare nor Agbabiaka suggests that the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity. Agbabiaka suggests that such a hearing might be contrary to the public interest because of its potential to damage international relations, and, thus contrary to the interests of justice, but that is a different point."

f. There is now a firmly established practice of evidence being taken from abroad by video link in family proceedings. In Hague Convention 1980 cases it is routine practice. Similarly, in wardship cases where the child is abroad with a parent who is refusing to return the child. To my knowledge this practice has not given rise to any diplomatic difficulties for the FCDO.

g. In many cases parents or witnesses abroad cannot realistically travel to England for the purpose of giving evidence. Legal, financial, or other restrictions may be imposed on them. 

h. By taking such evidence the Court is not seeking to exercise its powers abroad by imposing restrictions on the witness or by regulating their conduct. Indeed, one of the disadvantages of taking evidence remotely from abroad is the difficulty in enforcing appropriate conduct by the person giving evidence. 

i. The Court in family proceedings may sometimes seek to exercise powers over a person who is abroad, for example by making a return order under the inherent jurisdiction, but the talking of evidence is not in itself an exercise of such powers. The Court may require a person to attend a hearing remotely even though they are abroad, but the enforcement of such an order is problematic to say the least. In the great majority of cases the witness or party voluntarily attends to give evidence and no power is exercised over them by taking their evidence.

j. The Court in this jurisdiction is not seeking to exercise any powers over the authorities in another country in family proceedings. 

k. Accordingly, it is very difficult to see how diplomatic relations could possibly be damaged by taking evidence in family proceedings by video link from a voluntary witness in a private room abroad. 

l. In a particular case a specific concern might arise about the risk to diplomatic relations from taking evidence from a witness abroad. In such a case the matter should be raised with the Judge before communication with the FCDO. Absent such circumstances there will be no "doubt" as addressed by FPR r 22A Annex 3 paragraph 5.’ 

The issue of hearing video evidence from abroad comes up in cases more often that you might expect and I think the judgement, whilst fact specific to that case, is helpful in identifying the the list of factors set out above as being relevant to the decision relating to hearing evidence from a witness located abroad.