The Court of Appeal’s decision in N (A Child: Placement Order: Proportionality) is a reminder that when making child placement orders proportionality must be carefully considered, particularly where there is a complex cultural context.
Lord Justice Peter Jackson handed down the judgment earlier this month after a November hearing, finding that “the plan for adoption was not necessary or proportionate, and the decision [by the Family Court] was accordingly wrong.”
The mother of the child (L, born in 2023), is a Japanese national living in the UK. After losing her husband “in tragic circumstances” in 2015, she conceived L after “assisted conception overseas” and gave birth at the age of 55, leaving her with sole parental responsibility.
Following the birth of L, concerns were raised by nurses about the mother’s ability to care for the child. The local authority became involved, and home support proved insufficient. With the mother’s agreement, 21 months were spent in various mother and baby foster unit placements.
Although care proceedings were commenced in 2024 and a placement order later pursued, an attempt by the local authority to secure interim removal and placement with prospective adopters was unsuccessful. The case proceeded to a contested final hearing in August 2025, where Recorder Magennis concluded that should L continue to be cared for by his mother there was a risk of significant physical harm. A care order and placement order were made.
When discussing risk of harm to L, his mother did not agree that the threshold for intervention had been met. The mother’s failings as presented to the court included being unable to take parenting feedback on board, matters relating to the mother’s ability to consider risk, issues relating to her working, and an incident with a social worker. No serious harm had occurred to L and the risk as presented to the court was therefore theoretical.
Experts considered whether the mother might have autism, but it was concluded she did not. The risk of physical violence to L from his mother was assessed to be low.
Allowing the appeal, in his judgment, Jackson LJ noted that “unusual cases prompt a return to first principles” including Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, where the Supreme Court confirmed that a care order can “only be made if it is necessary in a democratic society for the protection of a child’s right to grow up free from harm, and proportionate to the needs of the situation”.
The starting point should be to explore alternative solutions, particularly where, as in this case, “the feared harm has not yet materialised and may never do so.”
As per Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2019] 1 FLR 779, “when assessing the risk of future harm, the court should consider: the type of harm that may arise; the likelihood of it arising; the severity of the consequences if it arose; and what risk reduction or mitigation steps can be taken. Having reached its conclusion about those matters, the court should make a comparison of the welfare advantages and disadvantages of each course of action and finally step back and check that any interference with rights arising from its proposed decision is necessary and proportionate. In summary: in a case that turns on risk of harm, does the risk justify the remedy?”
Jackson LJ concluded that any adoption required “particularly compelling justification” and that the Recorder gave unnecessary weight to “the feared harm has not yet materialised and may never do so”, and that sufficient account was not taken of the “cultural and situational elements affecting the mother’s parenting actions and responses”.
The care and placement orders were set aside, and an interim care order substituted. The matter was transferred to the Family Division for urgent resolution, with an urgent case management conference scheduled so that the local authority’s applications can be reheard.
Contact had not taken place for three months, which the judgment noted the intention of the local authority to reinstate.
Lord Justice Singh and Lord Justice Warby agreed.
N (A Child: Placement Order: Proportionality) [2025] EWCA Civ 1541
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