N (A Child: Placement Order: Proportionality)

Having heard this appeal, we set aside care and placement orders in respect of L, a two-year-old boy, and remitted the proceedings for rehearing. This judgment contains my reasons for concurring in that outcome.

In summary, on the evidence that was before the Family Court, the plan for adoption was not necessary or proportionate, and the decision was accordingly wrong. The deficiencies in the parenting that L was likely to receive from his mother were not of a nature and degree to justify the termination of the parent/child relationship. Had matters not moved on since the making of the placement order, we would probably have ended the proceedings by substituting a supervision order. However, L and his mother were separated for the first time on the day of the orders, and no contact has taken place for three months. It is not possible for us to assess how matters now stand and the local authority’s applications, if pursued in their current form, must therefore be reheard. The situation is of sufficient complexity and concern to warrant transfer to the Family Division for urgent resolution.

The circumstances are unusual. The mother, now aged 57,is a Japanese national. She is a professional person, who has lived and worked in this country for a number of years, and owns her own small home. In 2015, her husband died in tragic circumstances. She has no family support in this country. She decided to have a child and L was born in October 2023 after assisted conception overseas. Until the making of the care order, she was the only person with parental responsibility for him.

The local authority became involved upon L’s birth. Nursing staff at the hospital felt that the mother was unable to care for him independently, and required prompting in areas of personal care and feeding. A social work assessment, completed when L was five days old, identified that his mother would benefit from additional support to manage and meet his needs. The local authority initially felt that support at home would suffice, but visits to the home led it to believe that more was required. The mother continued to work from home until around March 2024.

Accordingly, when L was two weeks old, he and his mother went to the first of three placements that, as it turned out, lasted for the next 21 months. The first was a semi-independent placement that lasted until February 2024, the second a mother and baby foster placement that lasted until August 2024, and the third a mother and baby foster placement that continued until August 2025 and came to an end on the day of the final order. The mother agreed to these placements under section 20 Children Act 1989 and no statutory order was made in respect of L until the final order conferred parental responsibility on the local authority.

The applications were made for a care order in August 2024 and for a placement order in March 2025. In April 2025, the local authority applied for an interim care order with a plan for separation and placement with early permanence prospective adopters. On 20 May 2025, that application was refused by the court and the matter proceeded to a final hearing, which took place between 11 and 15 August 2025 before Recorder Magennis.

Evidence was given by an independent social worker (‘ISW’)Liselle Harold, the allocated social worker, the current foster carer, a clinical psychologist (Dr Kiera Fitzsimons), the mother, and the Children’s Guardian. The parties were represented by counsel, none of whom appeared before us.

In a well-organised judgment, the recorder directed herself correctly in law, citing a number of the well-known authorities, before turning to the evidence and her analysis. Having done so, she made a care order and a placement order in respect of L.

The mother disputed that the threshold for intervention was crossed, but the recorder found that it had been, on this basis:

“At the relevant date, 10 January 2024, L is likely to suffer significant physical and emotional harm attributable to the care given to him by the mother not being what it would be reasonable to expect a parent to give.

1.

The mother is unable to consistently met L’s needs in a safe manner without significant external support and prompting. The deficiencies in the mother’s parenting capacity including regarding her ability to adapt to L’s changing needs and assess and manage risk would place L at risk of neglect and significant physical and/or emotional harm.

2.

The mother struggles to control her emotions and often presents as angry and/or threatening towards professionals involved with L, including in L’s presence, particularly when given guidance on her parenting. This would expose L to risk of significant emotional harm and/or physical harm.

3.

Ms K [then the social worker] visited the mother in placement to participate in a CIC review [on 24 February 2024]. The mother refused to allow her entry into the room and slammed the door in her face. After Ms K re-opened the door and explained she needed to see L, the mother continued to shout at her to get out. The mother then rushed ahead of Ms K and proceeded to drag her from the room by her clothes causing her significant distress.”

It can be seen that the threshold was crossed on the basis of the likelihood of future physical and emotional harm. It was not alleged that L has ever suffered actual harm of any kind. On the contrary, as the recorder said in the second paragraph of her judgment (all quotations anonymised):

“I have absolutely no doubt that the mother loves L very much, and that he loves her. L is a delightful little boy, who is thriving.”

L was then 21 months old.

There is no appeal from the finding that the threshold was crossed. The foundation for the finding of likelihood of future harm rested on a number of matters, and I give references to the judgment by paragraph number.

I have listed these matters because they, and the mother’s attitude towards them, were said to justify the making of a placement order.

The recorder described three of the events as being perhaps the most significant: the assault on the social worker in February 2024, the incident when the mother pushed L towards the foster carer in February 2025, and the incident in Leicester Square. She discussed the first two in detail at [55-67]. In relation to the second, she considered it significant that the mother had been unable to explain in her evidence how the incident might have made L feel: [67]. She further noted that the mother seemed to have no difficulty with her behaviour in Leicester Square and showed no insight into the impact of such behaviour on L’s welfare: [149].

As to the observation about the high chair (no. 15), the recorder said this at [87]:

“This incident is not ‘minor’; this incident is in fact a snapshot of the wider and serious safety concerns which have been present since L’s birth - the falls from the mother’s lap, the fall from the bed, L’s face being covered with a pillow, L left unattended on a bed, L putting something in his mouth. The mother does not see the risk, she does not act to prevent or minimise the risk arising, and despite challenge, does not acknowledge even after the event the fact of the risk or the potential consequences of that risk to L.”

Assessing the mother’s evidence about these matters, the recorder stated this at [133]:

“The mother’s evidence was striking in a number of ways. The mother displayed no insight whatsoever into the Local Authority’s concerns. The mother minimised the assault on Ms K, minimised the incident on 14th February, and minimised the Leicester Square incident. The mother also blamed others; making it clear that in respect of Ms K and the foster carer they were respectively at fault for the way the mother responded. The mother displayed no insight at all into the risks, as the Local Authority alleges, to L’s physical safety.”

The question arose as to whether the mother might have autism spectrum disorder. The conclusion of two psychiatrists and two psychologists (including Dr Fitzsimons) was that she did not. However, the evidence established that there were very significant cultural issues in play when it came to assessing the mother’s actions and responses.

The recorder’s summaries of the reports of the ISW and Dr Fitzsimons were accepted as fair and accurate by the parties. She extracted the ISW’s ‘executive summary’ at [70]:

“The mother presented with an unusual profile. She could be polite and almost professional in her interactions and there could be a rapid shift in her engagement, with vague and tangential responses. She struggled to regulate her emotions when advice was offered or in relation to exploring past concerns and future planning. There were times when she would disengage or focus on her feeling imprisoned. It has clearly been stressful for her. The mother was able to engage more in the present.

The mother’s difficulties engaging with others and addressing her parenting has been a feature in work with numerous professionals, including the health visitor. It is acknowledged that her perceptions will be influenced by her cultural values and beliefs, and the fact that these proceedings and her current circumstances would be traumatic for her.

However, the mother during these periods is not able to prioritise L’s needs. Despite a high level of need, she does not accept she needs support and continues [to] minimize the relevance to L. Difficulties with partnership working has led to difficulties in making some changes. However, I am of the view that from the knowledge available and an assessment of the mother’s parenting and practices, she is not able to make changes in L’s timescale and that she will struggle with any learning gained, to transfer it to new scenarios.

The mother has not been diagnosed with psychological difficulties, but her profile impacts on her capacity to meet L’s needs, integrate him within the community and understand his developmental and emotional needs. There is also a serious risk of physical harm due to the mother's difficulties in assessing risk and keeping L safe.”

At [81] the recorder noted:

“Ms Harold reported that the mother was observed to be warm and attentive to L, she responded to his physical and emotional needs, communicated softly with him and displayed affection through touch and proximity.”

Having dealt with the ISW’s evidence about the high chair incident at [87] – see para. 14 above – the recorder continued:

“88.

The second ‘key’ concern of Ms Harold is the mother’s capacity to regulate her emotions and model this ability for a child. Ms Harold concluded that the mother’s difficulties in accepting help and advice, and her difficulties within her relationships with agencies indicates that she is not able to take the support Ms Harold believed she needed, even from community services. Furthermore, her difficulties with appropriate communication and outbursts exposes L to frightening behaviours, models mistrust in others, he will feel unsafe with his parent and impacts on his socialisation. [sic] That key concern was underlined by events on the 14^th February 2025.

89.

In considering whether any risks or shortcomings could be managed through a community-based support package, Ms Harold concluded that there is “limited confidence that then mother will engage sufficiently. The mother has been angry / dismissive of support offered from a range of professionals, most likely representing different backgrounds and perspectives. The mother has seen this as unnecessary and does not have insight into her level of need. These factors reduce confidence that support can be effective within the community.” Ms Harold concluded that effective support could not be offered, in light of the mother’s lack of insight into physical risk and developmental stages.”

Dr Fitzsimons’ formulation differed from that of the ISW, and the recorder cited extensively from her evidence at [90-105], from which these are extracts:

“91.

Dr Fitzsimons believed that both the Local Authority and the mother could “work toward improving their working relationship through some of my recommendations, bearing in mind the significant power of the Local Authority in their relationship. Should these recommendations not be taken up, it is likely that parties involved will continue to work against each other at times rather than together. There have been some examples of attempted culturally sensitive co-working at her most recent placement which appears to have coincided with improve relations and generally more positive reports of the mother’s parenting.

92.

Dr Fitzsimons did not find the mother to be hostile, dismissive or otherwise uncooperative. Dr Fitzsimons records in some depth the many positives identified by the foster carer in respect of the mother’s parenting; “The foster carer reported that the mother is very “focused and organised”. The mother takes the lead in parenting L; she will prepare food for him, play with him, and bathe him. The foster carer might help out, for example, by making sure there are towels out when the mother gives L a bath”. The foster carer did report some concerns regarding “receptiveness to advice at times and her occasional responses to her and others of curtness and raising her voice.” It is clear from the record oft his discussion that the foster carer was extremely supportive of the mother, empathetic to her situation and keen to do what she could to build trust and rapport.

93.Dr Fitzsimons observed L as relaxed and comfortable in the mother's care, seeking comfort from her and smiling at her. L was observed to directly communicate his needs to his mother. He squealed and kicked his legs with excitement and frequently looked towards his mother to share enjoyment with her. Dr Fitzsimons recorded L being “consistently able to communicate his needs and wishes to his mother which elicited a desired response from her. I did not observe L to escalate or inhibit his distress. When L was upset, he allowed his mother to comfort him and his distress was easily alleviated. In his mother’s presence, L consistently used her to help him regulate any distress and did not need to use any self-comforting behaviours.”

94.

Dr Fitzsimons concluded that:

“In my clinical opinion, the mother places high value on self-control and has a preference for keeping her emotions private rather than outwardly expressed in many contexts, particularly with unfamiliar people or those in positions of relative power or status. Based on the mother and interpreter’s feedback, published research and my clinical experiences, it is my view that this is almost certainly in keeping with the norm within Japanese culture...

In addition, it is my opinion that it is critical when assessing, seeking to understand and collaborating with the mother that one has an understanding of her communication style. Without taking into account her cultural background, it would be very likely that the mother's behaviour could be erroneously or at least overly negatively evaluated...

The Japanese "communication culture" can be described as "indirect", whereby communication is far less verbally direct than in, say, Great Britain, particularly with those who have relative power over the speaker...

The mother’s tendency for restraint in outwardly showing her emotions and in avoiding direct confrontation are, in my view, significant explanatory factors when considering some of the difficulties relating to professionals who have relative power over her in this context. It is likely that the mother is not accustomed to proactively creating or using opportunities to share and resolve differences of opinion with those who have relative authority over her. As a result, especially given the current stakes, the mother's feelings of disempowerment, frustration, and probable resentment can build and at times she can struggle to maintain them as private. The mother's control of her emotional expression could thus at times give way to instances where she has far less control and her pent up so-called negative emotions are expressed in a more uninhibited way. Evidence of this comes from her raising her voice at social workers or foster carers.

…

In my view there is not enough evidence to suggest that this relational dynamic is a persistent and problematic pattern across multiple other areas of the mother’s life.”

Dr Fitzsimons considered that the risk of physical violence to L from his mother was “very low”.

The Guardian’s report contained an account of two recent visits to the foster home. He recorded that the mother considered the local authority interventions to be oppressive: “Every day since I gave birth social services have been with us all the time, and L is almost two years old.” The foster carer felt tension between herself and the mother, but the respite foster carer, who relieved the foster carer for eight hours a day four times a week, did not experience this. As to L, the Guardian observed:

“56.

From available information and having observed L, there appear to be no concerns about his development, according to the psychologist. L is growing well, meeting his developmental milestones, and not showing any obvious emerging psychological difficulties. L would have been expected to present with some difficulties by now should his mother’s difficulties be impacting on him. Whilst it is very likely that L has been afforded different opportunities and experiences whilst in foster care, his relationship with his mother, based on observation, is not one of concern.”

However, he later added:

“72.

I was left to question how underneath that seeming happy exterior L was coping emotionally with the strained atmosphere he has been living in for the last six months.”

The Guardian’s opinion was that the incident of 14 February 2025 could be described as “wilful neglect”. Shortly before the final hearing, he asked the foster carer if any plans had been discussed with social worker for how a decision for separation should be implemented, and was told that this had not happened (report para. 80).

The Guardian’s final recommendation was in these terms:

“92.

I have never come across a situation like this before, where, in a mother and foster placement, the child sleeps in the room of the foster carer. This too is a placement that warrants considerable respite for the foster carer.

93.

I appreciate that the court is being asked to form a view on what is in the child’s best interests on the basis of the worrying threshold.

94.

In both her initial assessment and addendum, the ISW has argued that the child should not remain with the mother due to the risk being too great; in her initial assessment, carried out at a similar time to the psychological assessment, the ISW cites particular episodes which she found especially worrying. The ISW makes the point in her addendum that the mother’s parenting capacity needs are significant and do not relate to alternative cultural practices. She considers the difficulties that have continued and comments that the updating documents indicate then mother is not able to prioritise L’s needs when she is distressed, overwhelmed or in conflict with professionals. This is an essential part of parenting, particularly as stressors will emerge in day to day life.

95.

A child should be brought up by his parent unless that is not possible. The senior courts regard adoption as a draconian step when nothing else will do. The mother underwent a series of IVF treatments to become pregnant. Despite the mother’s stated commitment to L and accepting that separation of mother and a child of this age is a huge step, I would recommend that both care and placement orders be granted in this case, the risks to L identified by the independent social worker appear too great to be capable of mitigation by way of further support to the mother. I am concerned that the mother does not appear to sufficiently recognise the risks to L and their implications for his welfare.

The recorder summarised the Guardian’s contribution:

“136.

Mr Wheway explicitly addressed the question of whether in his view enough recognition had been given to the mother’s cultural background, and raises his many concerns about the profound difficulties arising from the ongoing tension and conflict within the household in which L lives. Acknowledging all of those complicating factors, Mr Wheway nevertheless concluded that care and placement orders should be made in this case;

“the risks to L identified by the independent social worker appear too great to be capable of mitigation by way of further support to the mother. I am concerned that the mother does not appear to sufficiently recognise the risks to L and their implications for his welfare.”

137.

In his oral evidence, Mr Wheway made clear that his key concerns are L’s safety, and his emotional welfare were he to return home with his mother. Mr Wheway agreed with Ms Harold that the mother would require 24/7 supervision, that the mother’s parenting lacks in all domains, that the emotional impact of the mother’s dysregulation is significant for L and that having heard all of the witnesses, his conclusions had been reinforced.”

The recorder immediately acknowledged the mother’s predicament:

“138.

This is a complex and difficult case. I acknowledge unreservedly the love the mother has for her son. I similarly acknowledge unreservedly the incredibly difficult position the mother has been in throughout these proceedings. She is a highly educated woman. She is 56 years of age, and is therefore significantly older than many new mothers who find themselves in care proceedings. The mother has a home, she had a job, she is a respectable person with an admirable and strong work ethic. The mother is financially stable. The mother has no diagnosed mental health disorder or psychological disorder which would require treatment. The mother has no history of drug or alcohol misuse. This places her in a very rare category indeed, and the genesis of the difficulties the mother has encountered in parenting her son have been difficult for the professionals working with her to understand.

139.

The structures in place to monitor and support a new mother about whom there are concerns are, in the unusual circumstances of this case, more difficult for the mother than they might be for - for example - a 19-year-old new mother. The mother moved into an assessment unit, away from her established and settled home, with many other strangers and the constant scrutiny of staff. The mother thereafter had to move into two foster placements, where again she was under scrutiny and felt that she was failing. I accept entirely that these steps are likely to have been very difficult for a woman in the mother’s position, and that given her social, educational and financial standing this will all have felt incredibly intrusive and difficult. The mother is slightly younger than the foster mother, but the role of a mother and baby foster carer may well be trickier to navigate when, as in this case, the age gap is small and the resultant power dynamic more complex.

140.

Those difficulties do not even touch on the cultural complexity of this case. Whilst the mother has lived in England for many years, it is not the country in which she was born or raised. What might otherwise be just interesting cultural differences have come to be extremely important in assessing the mother’s behaviour, her communication-style, her receptiveness to the Local Authority’s role, and to advice given. Much will be ‘lost in translation’ despite the best efforts of all concerned to bridge the cultural gulf that exists. I have considered with great care the evidence of Dr Fitzsimons, and I accept much of what she says about the difficulties for the mother, the mother’s experiences of these incredibly stressful proceedings, and the approach that should have been taken earlier to addressing the cultural issues in play.

141.

Many of the Local Authority's concerns might appear, when taken in isolation, to be relatively minor. There are concerns about weaning, basic hygiene, co-sleeping, a general 'resistance to advice'. There is also, as Ms Gilliatt rightly points out, evidence from the foster carer in particular that the mother is capable of providing good care to her son. Ms Gilliatt rightly reminds the Court that it is not my job to protect a child from parenting "including the eccentric, the barely adequate and the inconsistent." My task is to consider whether, in light of all that I have read and heard, the parenting the mother can provide to L falls on that side of the line, or whether - as the Local Authority and the Guardian suggest - in fact the very high bar for making care and placement orders, in my view the most draconian orders any court can make, is satisfied.”

After these insightful observations, the recorder turned to consider the threshold in the manner recorded above, and then considered the question of the risks of significant physical and emotional harm. These passages are of such significance for her decision that I set them out, starting with her approach to physical harm.

“143.

I conclude that L is at risk of significant physical harm were he to be cared for by his mother.

144.

Early childhood is a period of real physical risk to children; they cannot act to protect themselves, they cannot identify risk, they cannot mitigate risk in any way. Their physical development means they will toddle, climb, stumble, fall. Small, seemingly innocuous toys contain parts which present a choking hazard, commonplace household items contain batteries which present a choking hazard, children can climb onto high surfaces to reach toys and then fall if appropriate safety measures are not in place. Commonplace household cleaning fluids and dishwasher tablets can, if accessed by children, be extremely dangerous. Children need parents who can protect them from these risks to their physical safety. I accept entirely that all parents will, on occasion, take their eye off the ball. All children will suffer minor injuries, and I do not suggest for a second that minor injuries would pose by themselves a risk of significant physical harm.

145.

However, having heard the oral evidence of all concerned, and in particular the oral evidence of the mother, I am in no doubt that the mother cannot protect L from those risks. The mother denies the risks of the high chair on the mat observed by Ms Harold. The mother was warned of the risks of the finger toothbrush, even if not at the time through the written report of Ms Harold. The mother knew of the significant weight that would be attached to Ms Harold's conclusions, because she knew that as a result of that report the Local Authority's care plan was to be one of adoption. Notwithstanding that identified risk, some eight weeks later the foster carer records the mother giving L a finger brush. L placed the entire thing in his mouth, creating a choking hazard, and when the foster carer challenged the mother, the mother dismissed the concern, saying she was being ‘extreme’. As with the high chair, in my opinion this snapshot into the mother’s capacity to recognise and protect from physical risk paints a very compelling picture. These risks are numerous and everywhere in a young child's life. The mother should have been aware of the risk; she should have been alert to prevent the finger brush going into L's mouth, and she did not accept when challenged that the risk was there at all.

146.

The consequences for L should these risks to his physical safety not be managed are potentially catastrophic. It may be that a fall from a high chair, or a bang to the head, result in little physical harm, but it may be that a fall from a sofa back onto a hard floor causes significant and lasting injury. Choking, or ingesting a dishwasher tablet, or finding bleach under the sink, is even more hazardous and is potentially fatal. I do not believe on the basis of the evidence I have considered that the mother would be alert to these everyday risks. These risks are real, the consequences were they to occur very significant, and they cannot be managed.

147.

Ms Harold concludes that the only way the deficits in the mother’s parenting could be managed is by the ongoing provision of 24/7 support. Such support has been in place for the best part of two years; whilst I accept that there have been some improvements in the mother's care of L they are, when set against the length and intensity of support offered minimal.”

As to the risk of significant emotional harm, the recorder said this:

“149.

I similarly conclude that L is at risk of significant emotional harm. At times, the mother has demonstrated significant emotional dysregulation. The assault on the social worker, the incident on 14^th February this year, and the incident in Leicester Square are perhaps the most significant, but by no means the only, examples of that dysregulation. In particular insofar as the 14^th February is concerned, the mother’s emotional response directly led to her son banging his head on a hard floor following her shoving, or pushing him towards the foster carer. The mother’s evidence on this incident was extraordinary – she blamed the foster carer for 'starting it', she showed no capacity to reflect on her own responsibility for her behaviour, and she demonstrated no insight at all into the effect on L of either her physical treatment of him, or the emotional outburst in front of him. The mother seemed to see no difficulty with her behaviour in Leicester Square, and had shown no insight into the impact of such behaviour on L’s welfare.

150.

It is clear that the mother has behaved aggressively and inappropriately with a number of individuals throughout this protracted process… I conclude that the mother’s behaviour has gone far beyond that which would be acceptable and that there is a risk of such behaviour continuing if L is to remain in her care.

…

152.

I have carefully considered whether, as Ms Gilliatt suggests, those risks would fall away if these proceedings were to conclude by the mother returning home with L. There is some force in that argument; certainly the polarisation between the Local Authority and the mother which has formed part of the relational difficulties might dissipate. The difficulty is that on the basis of the evidence before me, professional involvement would have to continue - at a very high level. I note that the assault on Ms K took place long before these proceedings were initiated, when the Local Authority's plan was very much to keep mother and baby together. It is likely, given my conclusions about the mother’s basic parenting and capacity to manage risk, that professionals would need to challenge the mother in the future. It is likely that the mother will in those circumstances respond with high levels of dysregulation, and that L would be exposed to that.

153.

I also bear in mind that all children will interact with third parties throughout their childhood. Nurseries and schools in particular may have cause to challenge the mother. I am concerned that given the mother’s personality and combative style of interaction, future professionals may feel restricted from raising worries regarding L for fear of the mother’s response. This is a lesser risk in the overall context of this case, but it is there.

154.

I have carefully considered the evidence in relation to the mother’s attunement to L. The evidential picture is – on this issue – very mixed. I have anxiously considered whether the mother’s inability to articulate the likely impact of her behaviour on for example 14^th February is a consequence of the language issues, the cultural issues, the pressure of giving evidence or a combination oft those and other factors. But the mother not only couldn’t answer the question, she gave the impression that she did not see its relevance. Her answers suggest that at the very least, her attunement to L is something which will require a great deal of work in the future, which is consistent with the conclusions of Ms Harold on this issue.

155.

I consider therefore that the risk of emotional harm to L is both real and significant.”

In a final three pages, the recorder addressed the welfare checklist, and contrasted the options of a return home and adoption. She acknowledged the significant disruptions, losses and risks that would accompany separation, but considered that the losses could be mitigated to some degree by the ongoing direct contact that was proposed. (The local authority care plan, approved by the court, was for a gradual reduction in contact, with the identified prospective adoptive family being open to direct contact twice a year, and possibly to video contact.)

The recorder then stated her conclusions:

“176.

This case is extremely sad. The mother loves her son very much, and desperately wants him to remain in her care. The reasons for the mother’s inability to protect L from physical or emotional harm remain unclear after nearly two years of state involvement. But for L, he cannot wait any longer and a decision must be made.

177.

This has been a difficult decision; I acknowledge the progress the mother has made in placements. But that progress is limited, and cannot keep L physically or emotionally safe.

178.

I have asked myself whether there is any less draconian step which might be taken to protect the mother and L’s relationship, conscious as I must be that any order made by the Court must be both necessary and proportionate to the risks as required by their respective Article 8 rights. I have sadly concluded that nothing short of care and placement orders can safeguard L’s welfare now and in the long-term.

179.

I shall make a care order and a placement order. In so doing I dispense with the mother's consent on the basis that L’s welfare so requires.”

These orders appear to have had a severe effect on the mother. For whatever reason, no application was made for a stay, and on the day of the order, 15 August 2025, the local authority required her to move out of the foster home. Its subsequent attempts to arrange contact have been unavailing, with the mother not responding. It is not for us to investigate this troubling situation.

On 5 September 2025, the mother filed an Appellant’s Notice, acting without legal aid through different solicitors and counsel. No reference was made to events since the orders. On 2 October, I granted permission to appeal and stayed the placement order, and on 20 November we heard the appeal. Had the court been aware of the current situation, an earlier date might have been found.

Following the trial, the Children’s Guardian retired, and submissions on behalf of the child were made on the instructions of a Cafcass manager. None of the trial counsel appeared at the appeal hearing.

For the mother, Mr Feehan KC and Mr Hay submit that (1) the recorder’s explanation for why separation and adoption were necessary and proportionate, given the findings, was inadequate; (2) there was a failure to consider mitigatory protective measures, such as nursery school and support at home; and (3) the recorder failed to reconcile Dr Fitzsimons’ evidence with that of the other professionals.

For the local authority, Ms Bhachu rightly invited us to read the judgment as a whole, and she demonstrated how earlier passages (cited above) provided the underpinning for later conclusions. The recorder had expressly considered possibilities for mitigation of risk at [89] and [171]. Ms Bachu however accepted that the conclusion about emotional harm coming to L through his mother’s dysregulation at moments of stress could not on its own justify separation and could rather be seen as supplementing the risks of physical harm.

On behalf of L, Ms Meusz filed a skeleton argument on the instructions of the Cafcass team manager. It expressed concern about the delay in planning L’s future and alertness to the extent to which the cultural features had been given sufficient weight by the recorder. It accepted that Dr Fitzsimons was the expert most qualified to deal with the mother’s general functioning. Cafcass now accepted that from February 2025, the mother “felt wholly undermined and had little opportunity to develop further her independent skills.”

Ms Meusz referred to decisions of this court on the assessment of risk: Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2019] 1 FLR 779; Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60; Re T (Children: Risk Assessment) [2025] EWCA Civ 93 (the recorder cited the first of these). It was submitted that she did not fully analyse Dr Fitzsimons’ evidence in relation to “the cultural and contextual elements pertinent to the mother’s presentation and emotional regulation”. Nor did she explain how she reached the conclusion that the mother would require indefinite 24/7 support or explain why the ISW’s evidence was preferred, or why the support package proposed by Dr Fitzsimons would not be sufficient to reduce risks. There was no analysis of how risks to L would change as L grows older, and how placement in nursery, then school, would impact on risk, nor how the likely employment of a nanny/childminder while the mother worked might help.

Despite all this, the Guardian’s skeleton argument invited the court to dismiss the appeal. It argued that the recorder was entitled to prefer the evidence of the other professionals over that of Dr Fitzsimons and that the evidence of the mother seems to have been of the utmost significance. It ended: “Notwithstanding the lack of clarity and analysis of how risk can be managed at some points in the otherwise very careful and considered judgement the Guardian does not support the mother’s appeal.”

In oral submissions, Ms Meusz did not argue that the potential consequences of domestic accidents were any different for L than for any small child; what was different was the mother’s dismissive response to the concerns about her parenting. However, during the lunchbreak, further instructions were taken from the former Guardian’s manager, leading to a change in position whereby Cafcass supported the appeal and invited us to remit for rehearing for the reasons given at paragraph 36 above.

Unusual cases prompt a return to first principles. In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, 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: see Re H-W (Children) [2022] UKSC 17;  [2022] 4 All ER 683 per Dame Siobhan Keegan at [45].

As Baroness Hale said in Re B at [198]:

“… it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.”

So, as stated by Lord Neuberger at [105]:

“…before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support.”

This echoes what the Strasbourg Court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332 at [134]:

“[F]amily ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

In Re F (above), I suggested that in 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?

In Re B, in a finding upheld by the Supreme Court, the trial judge had expressed himself satisfied that the threshold had been crossed, “not perhaps in the most extreme way that is seen in some cases, but crossed it has been”. That, in my view, is the situation here. The mother’s characteristics, unusual for a parent facing care proceedings in this country, led a number of professionals to express real concern about her parenting and her often dismissive response to guidance. These observations, coming from a range of experienced observers, had to be taken seriously, but they were not the end of the matter. The critical next question was whether the risks to L in early childhood, assessed in the light of whatever support might be effective, were so great as to justify the permanent dissolution of this small family.

This is therefore a case in which the classic statement of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050;[2006] EWCC 2 (Fam) at [50] is of real importance:

“[S]ociety must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

The conclusion in that case was that the threshold conditions were not satisfied, but the message is equally applicable to cases in which they are.

Although we are departing from the recorder’s conclusions, I am conscious of her grasp of the evidence and the care that she took in this unusual case. She was faced with unanimous social work opinion about the mother’s parenting ability, and the positions of the local authority and Guardian were different at trial, in varying degrees, to the positions they now take. The case for adoption was illustrated by a large number of small incidents and the generally dismissive parental reaction. No doubt the professionals were right and the mother was wrong about many of those matters, but the court needed to maintain a sense of proportion and keep the bigger picture in view. Adoption on the basis of evidence of this nature was an improbable outcome and it required particularly compelling justification. Reasoning of that kind is not to be found in the evidence or in the judgment and the orders in this case cannot therefore be upheld.

In the first place, this was a case of the kind referred to in Re B where “the feared harm has not yet materialised and may never do so”. Despite the presence of another adult, the mother had been L’s primary carer for nearly two years, during which no harm, still less significant harm, had come to him. That factor had to be taken into account when the court was considering future risks. However, the recorder made no reference to it in the passage cited at paragraph 26 above, but instead began with general points: early childhood can be a dangerous time for small children, if not properly supervised; all parents will, on occasion, take their eyes off the ball; minor injuries do not amount to significant physical harm. She then said that the evidence left her in no doubt that the mother cannot protect L from “those risks”, by which she meant the everyday risks of childhood. She did not attempt to describe the increased likelihood of L having accidents, compared to small children generally, who have accidents because all parents take their eyes of the ball at some time or other. She did not take account of the fact that the mother had been allowed to take him for two hours a day on her own until February 2025. Further, in describing the consequences of the risks not being managed as “potentially catastrophic”, the recorder focused on extreme outcomes from domestic accidents. No child is immune from those outcomes, but fortunately they are rare. In L’s case, even if he came by additional accidents due to his mother’s inattention to risk, there is no reason to believe that the consequences of individual events would be worse for him than for any other child. In accepting the ISW’s assessment of risk, the recorder unduly elevated the significance of this element of the welfare checklist.

The second difficulty concerns the recorder’s approach to possible measures of support. It is true that the mother had reacted poorly to direct parenting advice. At the same time, her case was that she wanted to work, and that she would employ a nanny or childminder. L is already at an age when he could be at a nursery and in due course he will go to school. The recorder did not explore the obvious possible benefits of these foreseeable arrangements, but instead simply accepted the view of Ms Harold that effective support (i.e. 24/7) could not be offered: see [89] at paragraph 19 above. However, there was no reason to think that round-the-clock support was needed or would be needed indefinitely, or that the mother, who had voluntarily accepted extensive limitations on her freedom of action for nearly two years, would not abide by reasonable conditions in future, whatever she might personally think of them. The recorder also considered that the mother’s combative style towards third parties might inhibit professionals such as teachers from raising worries, but she did not take account of the more obvious and potentially beneficial roles that these professionals might play: see [153] at paragraph 27 above. As a result of these matters, ordinary possibilities for risk management were left out of account.

The third, and related, matter is that the recorder acknowledged the cultural and situational elements affecting the mother’s parenting actions and responses, as highlighted by Dr Fitzsimons, but she did not factor them into her analysis. Dr Fitzsimons’ opinion was relevant to both kinds of risk, but perhaps of particular interest to the issue of emotional harm. She advised the court that there was not enough evidence to suggest that the mother had a persistent and problematic pattern of relationship difficulties in other areas of her life, as opposed to being reactive to her circumstances: see paragraph 20 above. There was therefore no basis to conclude that the mother would be likely to come into conflict with professionals that she encountered in other contexts. (I note in passing that the ISW made something of the fact that the mother was engaged in three sets of litigation: these proceedings, a claim against former employers arising from her redundancy, and an action by her landlord after she withheld a portion of her service charge because a non-working lift. The recorder rightly did not refer to these matters.)

It was also, in my view, problematic to place significant emphasis on this mother’s oral evidence when considering her likely future behaviour: (see [133] at paragraph 15 above). The complex cultural factors acknowledged by the recorder (see [140] at paragraph 25 above) required particular caution. The mother’s lack of insight into professional concerns was relevant, but its significance very much depended on the nature and validity of the concerns themselves, and on the extent to which effective protection might depend on insight, as opposed to other measures.

Further, the ISW and the recorder set considerable store on the likelihood of L experiencing emotional harm as a result of the mother’s occasional dysregulation. Even if Dr Fitzsimons’ evidence could be discounted, L has not suffered any apparent harm from the three incidents most relied upon or any others, and it is hard to see this issue as a major factor in planning for his future. Many children have difficult parents and grow up surrounded by conflict, but it was not demonstrated that behaviour of this kind would be likely to translate into harm to L, significant or otherwise. The local authority now accepts this to some extent. However, that was not its position at trial, and it is not how the recorder approached her decision.

Finally, on the recorder’s own assessment of the mother, it is hard to see how she could have expected that post-adoption contact could successfully occur: see paragraph 28 above. She cannot have foreseen the acute difficulties that arose after her order was made, but they tend to illustrate this point.

These are all matters that the recorder was in my view bound to take into account when assessing the risks to L and weighing them alongside the other welfare factors, which all spoke strongly against separation. Had she done so, she could not in my view have properly concluded that adoption was necessary or proportionate.

For the reasons now given, we allowed the appeal and made orders in these terms:

I agree.

I also agree.