Council wins appeal over refusal of application for authority to end residential unit placement for mother and baby

Lord Justice Cobb said in his judgment that HHJ Thomas “undertook no or no meaningful 'balance' of the many potentially relevant factors which obtained to the facts of this application”.

The case was brought by an unnamed local authority about C - a child aged eight months - who is in the care of her parents, both of whom have learning difficulties and whose older children have been placed permanently with substitute families.

C has been the subject of an interim care order under section 38 of the Children Act 1989 since the day after her birth.

In August 2025, the local authority sought to separate C from her parents. HHJ Thomas rejected this and the local authority then appealed.

The court heard both parents have learning difficulties and suffer various kinds of mental ill-health.

Cobb LJ said: “The parents have had nine children between them, all of whom have been removed from their care following findings of neglect, emotional harm, and physical abuse.”

Evidence from the local authority was that despite sustained professional input, neither parent has demonstrated meaningful improvement in their parenting ability.

Cobb LJ said HHJ Thomas had challenged the local authority's advocate to address the five-point test in Re CRe C [2019] and said that if the parents were not planning to leave their present accommodation - named Oak Lodge - the test would not be made out.

“The judge proved to be unshakeable in this view through the hearing, repeating it several times,” Cobb LJ noted.

Three grounds of appeal were lodged by the local authority. There were that HHJ Thomas failed to fully consider its evidence, failed to undertake a careful and considered welfare analysis of the options and was wrong to focus on whether C would be at risk of only physical harm with her parents, not considering potential emotional and psychological harm.

Cobb LJ said C was “indisputably a vulnerable infant” and Oak Lodge staff “had for some considerable time…expressed material concerns about C's welfare, and the parents' ability to meet her needs”.

The question for HHJ Thomas, he said, had been whether those concerns met the 'necessary and proportionate’ standard of justification to separate C from her parents.

Cobb LJ said: “I regret that I do not find in the judgment (or in the transcript of the hearing which preceded it) the sort of ‘anxious consideration’ of the issues in this case which Peter Jackson LJ had contemplated and spoken of in Re C [2020] at [13].

“Nor do I find a ‘coherent' assessment of the evidence which had been filed…there was in fact no mention of the social work statement in the hearing or the judgment and limited, if any, analysis of the Oak Lodge final assessment report in the judgment.”

He said that apart from the observation that the court has to consider the balance of harm, “there are no indicators in the judgment as to what matters the judge had taken into account in performing that ‘balance’”.

HHJ Thomas “makes no reference to the context in which these parents come to be at Oak Lodge, and Cobb LJ said he could not accept the submission that the judge undertook any kind of 'balanced' appraisal of the difficult issue which he was charged with deciding”..

He continued: “On the contrary, it is clear that from an early point in the hearing the judge had reached a firm, and in the end unshakeable, view that the five point test in Re C 2019…was not made out on these facts, and in his view that was dispositive of the application.”

Noting that Family Court judges work under significant pressure and there “is accordingly much to be said for robust case management”, Cobb LJ found: “I cannot but conclude that the judge proceeded too quickly and cursorily to a firm decision that the application must fail, from which (without consideration of the wider issues, and the clear written and oral submissions from the Children's Guardian about the ongoing poor parenting of C and the harm she was suffering) he did not deviate.”

He said the three appeal grounds were interwoven but the strongest was the second concerning the “failure to undertake a careful and considered welfare analysis of the options before the court for the interim care of the child, which is amply demonstrated on these facts”.

Cobb LJ urged the Family Court in Kent to hear the remitted application in mid January 2026 before a different judge.

Arnold and Zacaroli LJs both agreed.

Mark Smulian