In the recent case of F (Children Placement Orders: Proportionality) [2026] EWCA Civ 990, the Court of Appeal considered what weight should be given to findings/ facts when considering the likelihood of future harm and if adoption was proportionate or necessary in light of that risk.

In this case, the main issues related to domestic abuse, bruising to one of the children’s ear and abdomen and issues around parental dishonesty to the Court and professionals.

 

 

The Court at first instance made a number of findings including:

• domestic abuse by the father and minimisation by the mother in that respect;
• a lack of honesty by the mother about her own family to assist an asylum claim;
• a Lancashire finding between the parents as to marks caused to the child’s ear and arms caused by excessive force such as squeezing or pinching;
• if the father had caused the injuries, mother had failed to protect; and
• both parents had lied repeatedly, not only in the proceedings, but to the Home Office, Immigration Tribunal, police, social services and other professionals, all of which had obstructed the proper assessment of risk by child protection injuries.

Following the fact find element, the first instance tribunal had indicated:

‘If the local authority proposes any plan for rehabilitation, then the court has to be satisfied that risk and safety comes first and the local authority must… satisfy the court that an evidence-based approach to risk reduction is available and likely to reduce the risk.’

The Court then invited the parents to reflect upon the judgment, and subsequently the local authority took the view that the parents did not accept the professional concerns and the local authority revised its plan to a care plan of adoption.

At the subsequent separate welfare hearing the trial judge was not satisfied that the analysis undertaken by the local authority and guardian was Re B-S (Re B-S (Children) [2013] EWCA Civ 1146) compliant and had not set out (in particular) the advantages of placement with mother, the immediate and lifelong impact of removal, and the comparative balance between realistic options and a properly set out welfare/proportionality analysis.

To that end, the welfare argument was adjourned to a further hearing, and in the interval the mother issued a divorce petition, stopped attending contact alongside the father and attempted to sever her asylum claim from his.

At the final first instance hearing, the Court had found that: the local authority plan involved several placement moves and a possible sibling separation; the children had a good attachment with their mother (it being noted that to that point there had been no interim separation); the mother had been meeting the children’s practical needs; and the children would find such separation distressing and would cause them harm.

Whilst the mother had made efforts to separate from the father, the Court found that those efforts were motivated by a fear of losing her children rather than of her own wishes.

In considering risk, the Court determined that:

‘The welfare determination in this case has never been about whether mother and father stay together or separate, neither has it ever been about the parents’ failure to accept the judgment I gave on threshold. It has always been about the risk that flows from that judgment and the parents’ ability to acknowledge that risk and thereafter to work with the local authority safely, to effect change and mitigate that risk. That is the case whether they are separate or together.’

The trial judge also concluded that no protective mechanisms could be effective without the mother’s openness and honesty.

As a caveat to all that, the trial judge did confirm that the injuries suffered were, in themselves, not the most serious, but had to be looked at in the context of both a lack of control and the history of domestic abuse (albeit that the last incident of domestic abuse had occurred more than 3 years previously). To that end, the judge then made final care and placement orders.

The matter came before the Court of Appeal on 2 grounds:

• The making of care and placement orders were neither necessary or proportionate in light of:
• the last domestic abuse episode occurred more than 3 years ago;
• the inflicted injuries to the child were not the most serious in nature and there was no evidence that this was anything other than an isolated event;
• the mother had complied with all professional requirements and safety plans for more than 12 months whilst in a residential placement; and
• the likely emotional harm caused to the children by separation from their mother and potentially each other.
• The judge at first instance had conducted a welfare evaluation that was procedurally flawed and linear rather than a holistic assessment of the realistic options.

The Court of Appeal discounted the second ground, but in respect of the first, allowed the on that basis.

Lord Justice Peter Jackson reiterated the decision in Re H-W (Children) [2022] UKSC 17 that when considering the removal of children from their family, the Court needed to consider:

• What was the likelihood that the children would suffer harm in parental care?
• What would be the consequences of such harm arising?
• What are the possibilities for reducing the risk or mitigating the consequences?
• What are the comparative welfare advantages and disadvantages of the options presented?

Lord Justice Jackson also reiterated his previous observations made in Re T (Children: Risk Assessment)[2025] EWCA Civ 93 setting out the questions as:

• What type of harm has arisen and might arise?
• How likely is it to arise?
• What would be the consequences for the child if it did?
• To what extent might the risks be reduced or managed?
• What other welfare considerations have to be taken into account?
• In consequence, which of the realistic plans best promotes the child’s welfare?

(7)  If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate?

When factoring in the answers to those questions, the Court of Appeal determined that the judge’s welfare analysis fell short in 2 ways:

• there was insufficient focus on the realistically likely consequences for these children of such harm as they were likely to suffer in maternal or parental care; and
• there was an insufficient recognition of the potential ability of the state to support these children within their family by means of a combination of:
• supervisory or coercive measures under s.31 of the Children Act 1989;
• a Domestic Abuse Protection Order (DAPO);
• any voluntary interventions by local authority support services and by other agencies working with the parents who might (if properly briefed) add another layer of vigilance.

As such, the Court of Appeal allowed the appeal and remitted the matter to the Family Court for further welfare determination.

Lord Justice Peter Jackson declared that he did not find the matter ‘an entirely easy appeal’, particularly where the judge took account of all the matters urged on her by the parents and reached a ‘clear and well-reasoned conclusion’. Indeed, many times the Courts are in the position of considering welfare issues following a fact find hearing where the parents do not accept the concerns of professionals and having to make a determination whether risk can be managed in those circumstances.

Sometimes a ‘Resolutions’ style assessment post findings may assist where parents do not accept the professionals’ concerns, but there are limitations to that type of assessment, particularly where the parents may not have the kind of protective support network that a Resolutions assessment usually requires.

F (Children Placement Orders: Proportionality) makes it is clear that when considering threshold findings and the consequential welfare determination, the Court must have at the forefront of its mind the nature of the harm found and carefully consider how such harm can be mitigated and whether that harm in itself necessitates continued separation from parents. This is a particularly acute consideration when considering the ‘nothing else will do’ test for the permanent separation of adoption.

So, how should the Court be invited to deal with those considerations?

The starting point- it is suggested- is the 7 point set of questions posed by Lord Justice Jackson, and a focus on the nature of the harm and the proportionality of the plan when looking at that harm. If that harm cannot be managed, then the advocates need to be careful to ensure to spell out to the Court why any plan is proportionate to the identified risks.

It is also not good enough to simply say there have been findings of dishonesty which undermine the ability of the parents to work with professionals. The Court must consider the nature of the potential harm itself and whether that harm is likely to significantly undermine the welfare of the child. That is also a question that should be carefully considered in the care plan itself, and professionals must be alive to that issue when determining what is in the best welfare interests of the child.