A (A Child) (Proportionality), Re

In this judgment I explain why I have disagreed with both the applicant local authority and the child’s guardian in concluding the right outcome for the child is placement with his mother under a supervision order.

I heard evidence and submissions over 3-days and have taken this into account along with the papers in the hearing bundle and other documents placed before me. I keep all of this in mind in reaching my conclusions.

The local authority argued this was a case in which only a care and placement order would meet the needs of the child throughout his life. The child’s guardian supported these orders but felt the decision between final care and placement orders was finely balanced. The child’s mother disagreed and argued for return of her child whilst his father accepted the need for a care order, disputing the placement order only. All parties agreed that were a placement order made it should be made with an expectation of ongoing direct contact. There were though some limited disagreements in this regard.

The law in this area is well understood. I will summarise it but keep the broad principles in mind. The child’s welfare is paramount. I have regard to his welfare throughout his life and apply the extended welfare checklist found in the 2002 Act. I must find the legal threshold crossed (this is not in dispute) but the establishment of the same does not mean an order must be made. The making of an order flows from assessment of the child’s welfare in the context of the realistic options placed before the Court through a holistic approach. This analysis ensures the Article 8 rights of the family are fully respected and ensures a placement order can only be made where there is no other realistic option that would meet the need of the child for good enough parenting.

At the time of final hearing the proceedings were at about 64-weeks. The mother had been involved with the local authority since late 2022. The key concerns related to domestic abuse from an ex-partner (not the father); alcohol abuse; neglect and poor engagement with professional services. The child was taken into police protection and the proceedings commenced. The final threshold focuses on the domestic abuse, substance misuse and the impact of these features on the child’s stability and emotional wellbeing. Whilst certain details are questioned the mother fundamentally accepts the concerns and the crossing of the threshold.

Prior to proceedings a parenting assessment, psychological assessment and hair strand testing was undertaken. The HST confirmed excess alcohol use. The psychological assessment identified no mental health or psychological difficulties and recommended a range of supporting work that might assist. The mother failed to properly engage with the parenting assessment leading to a negative conclusion.

At the outset of the proceedings the Court made an interim care order, and the child has remained in foster care through the proceedings. An early DNA test established the father’s status, but he currently has no relationship with the child and has opted not to be assessed. The initial directions provided for assessments including parenting assessments and an IRH was listed in February 2025. At that stage the proceedings were allocated to the Magistrates. The outcome of the assessment of the mother was mixed in being negative but suggesting a further 12-weeks were appropriate to test her commitment and to examine whether she could make sustainable changes. Throughout the proceedings the Court has directed HST for the mother. An early start worker was commissioned to work with the mother and report, and a revised timetable towards IRH in July 2025 was set.

The mother fell pregnant in about June 2025. At the final hearing I understood she was about 6-months pregnant. In June 2025 the matter was reallocated to District Judge level because of allegations made but now not pursued by the local authority. The timetable slipped and a new date for IRH was found in September 2025. At that hearing the mother sought an assessment of a supportive friend. This was refused and a subsequent appeal made but withdrawn. Whilst this decision was raised before me during the hearing it did not figure in final submissions. A final hearing was fixed in November 2025 however due to some confusion with listing this had to be vacated, and I offered space in my diary to hear the final hearing. This is my first involvement with the case.

During the hearing the key evidence focused on the following matters:

I have regard to alcohol use (a continuing issue for consideration) and cocaine use (which arose during the proceedings). It is agreed the evidence does not indicate the mother has an alcohol dependency. This means the question for her is not abstinence from alcohol use but rather appropriate moderation of any use. I have several HST and PETH tests to support the evidence. The PETH tests provide sensitive evidence as to usage in the preceding 30-days prior to testing. Their sensitivity permits a much closer examination as to the levels of alcohol consumed during given periods. The HST generally cover a longer period set by the length of the hair sample taken. They are interpreted in conjunction with blood tests. They benefit from providing a broader timeframe but suffer from the fact they cannot be segmented and so it is not possible to establish with clarity when any alcohol abuse found within a period arose. The tests inform as to whether during a period the individual consumed over a threshold of excessive use. On an average basis this equates to 7-units a day. Testing of this form is useful but must always be interpreted and understood having regard to the range of other evidence available.

The Court has an explanatory letter from the testing agency. It expresses caution as to over interpretation of the results and particularly where testing periods overlap. Further, the letter clarifies the potential for positive cocaine readings to be obtained based on residual traces remaining in the hair after cessation of use. This period can be up to 6-months after usage but is affected by several factors. The alcohol results are as follows:

I note the following. First, the most problematic results (May-Sept) coincide with the 12-week period during which the mother was being assessed for change. It is rightly argued that this was a noted opportunity to demonstrate a focus and prioritisation on showing her ability to meet the child’s welfare needs. However, notwithstanding support she did not declare this usage until after the event and following the positive results. Second, the mother fell pregnant in about June 2025 (based on her suggested EDD of March 2026). There is good evidence to suggest this state of affairs motivated her to abstain from usage. There is (see below) supportive evidence as to an improvement in her availability at contact and improvements in her engagement in the latter period. This supports the conclusions drawn below. In contrast it is noted that during the problematic period she unusually missed some contacts. This is supportive of the earlier results.

On the evidence available I have drawn the following conclusions. In doing so I have applied the balance of probabilities:

I have reached significant but balanced conclusions in this regard. There is room for significant criticism of the mother’s decision making in the very period she was placed under close examination. This causes the Court to have real concern as to sustainability. However, I cannot lose sight of the broader picture which is far more positive and demonstrates an ability to make change and sustain the same for a reasonable period. I am confident the mother’s pregnancy will have been a motivating factor just as I am confident the reasons given by the mother for her earlier failure (see below) were negative contributing features. I take these conclusions forward into my analysis. I do so bearing in mind the mother is not said to be dependent on alcohol. The question for the Court is her ability to make the right choices and to sustain these in the face of stressors/triggers.

As regards the cocaine usage I recognise the concern this causes but I have found this must be interpreted in the light of the prevailing circumstances at the time of the usage. I am not persuaded there is evidence of the mother having a continuing relationship with let alone a dependence on such drug.

Those assessing the mother prior to May 2025 were concerned as to her management of contact. She was felt to poorly regulate the contact and this was impactful on the child. I accept this evidence. It indicated a need for a significant change on the part of the mother. There is good evidence that the mother has made these changes. All the relevant witnesses were taken to the contact notes for the more recent period (the back end of 2025) and all accepted the evidence was of a material improvement on the part of the mother. I keep in mind the time line of alcohol and drug abuse and I am clear there is a correlation between the reduction and cessation of usage and the mother’s availability at contact. I consider there is a likely virtuous circle in operation with the mother being in an improved position as a result of her improved control of alcohol which has in turn has led to improvements in contact and which has positively fed back into the mother’s engagement. I am in no doubt the mother’s pregnancy is a motivating factor. It may have been a moment of realisation for her. At this point in time contact is wholly positive. The issues previously identified have been addressed.

The mother was questioned as to the fact that she was misusing at a point where she was engaged with services but clearly felt unable to share this with her support and/or reach out for support. Instead she kept this to herself and it was only with the testing results that she faced up to the reality of what had been happening. Her response was that she was scared as to being honest. This is easy to understand in the context of proceedings in which she faces the loss of care of her child. However, it does not give optimism as to how she will act if in future she is faced by similar challenges. A key factor in a case of this sort is the requirement for transparency so that developing issues can be addressed before they become overwhelming to the point of posing a safeguarding risk. So I can empathise with the response but it leaves me concerned. The mother was clear she understood her failing and was committed to ensuring this was not repeated. The issue is the trust that can be placed in such a statement given the previous experiences. I am satisfied the mother is genuine in her statements. My assessment of her is broadly positive. She impresses as having a level of insight and is plainly an intelligent woman not blighted by particular mental health or learning difficulties. There is no fundamental reason as to why she should not be able to build and rely on supportive relationships.

Naturally the mother was questioned as to why she had elected to drink and use drugs and particularly in the circumstances in which she knew there was growing optimism as to her future care of the child. Her response combined a number of elements. She spoke of having fallen into an unhealthy friendship group associated with drinking and drug use. But she also referenced a number of issues ‘swirling around her head’. These included the stress of the proceedings but also unresolved anxiety relating to coming out of an abusive relationship. She told me that the work geared towards assisting her with this had to an extent triggered a negative response which had fed into her poor decision making. This explanation led to a suggestion that there may be some level of undiagnosed mental health difficulty. I did not find this suggestion persuasive. The explanation given spoke of dealing with a range of explicable stressors which would likely impact any individual. In my assessment they are not suggestive of a mental health difficulty of any significant nature. In reaching this conclusion I naturally rely upon the expert evidence in such regard which supports this conclusion.

There is no doubt the mother has been a victim of abuse within her intimate relationships. However the timeline suggests this was no longer continuing at the date of the proceedings or indeed within the proceedings. The questioning noted in the preceding section drew attention to the perceived conflict between the timing of the last claimed abusive relationship (2023) and the evidence of coping with a recently ended abusive relationship. The suggestion was made that this might infer the mother had continued into further abusive relationships. As with the mental health point I was not impressed by this argument. The mother’s evidence was tolerably consistent with being related to abuse suffered within the time lines set out within the case. Further, there was no evidence by way of reports or otherwise to suggest that this continued to be a material part of her day to day lived experience. I accept she gave evidence of continuing to engage with a ‘girlfriend of a previous abusive partner’ and that this was ‘toxic’ but I do not accept this is evidence of the mother continuing to engage in abusive relationships. I do accept the mother has shown a pattern of entering into abusive relationships and that this is a vulnerability that requires close consideration. I accept the mother has engaged in domestic violence work and is signed up to a further programme to assist in such regard.

I received powerful evidence from the guardian as to the painful evidence she witnessed of trauma on the part of the child when separated from the mother. The experienced guardian spoke of personal upset in witnessing the separation. The reports from an experienced contact supervisor confirmed the relationship between the two was very strong and that the child was suffering real and continuing trauma by his separation from his mother. This was supported by information from the foster carer. In many cases one can see these emotions present at initial separation but they moderate over time. In this case the emotions are stark and continuing. I accept there was evidence to suggest the mother and child had a somewhat insular relationship and that this may have contributed to this strong bond but the overarching evidence was that this spoke of a firm and positive bond between the two.

The relationship existing between mother and child led the professionals to conclude that any adoption should include continuing direct contact between the child and mother. The parties disagreed as to whether this should be addressed by way of an order or recital and as to whether this should be set at once a year (LA), twice (guardian) or four times or more (the mother). The professional view was that contact would be required to enable the child to settle into any placement given his bond to his mother. Yet continuing contact would have the potential to keep the pain of separation in focus and might undermine any placement. I note the child’s age and whilst he is not outside the boundaries of adoption it is clear he will have strong and abiding knowledge of his mother which will have the potential to impact on his ability to settle into a ‘forever family’. A complicating feature will be the mother’s new baby. Whilst there will likely be local authority involvement there is a real possibility the mother will retain care of this child. One should not overlook the emotional impact on the child of meeting up with his mother and new baby and seeing that child be able to leave in its mother’s care. I consider this has a real potential to be undermining of the child’s emotional wellbeing and his placement. In any event it will require real care as to management.

I find the threshold crossed on the basis of the admissions made. I accept at the commencement of proceedings the child was suffering or likely to suffer neglect due to the mother’s abuse of alcohol and the relationship decisions she was making.

The child is too young to have wishes and feelings based on a mature understanding of the case and the issues involved. He has a strong bond with his mother and wants to be in her care. Acting contrary to these wishes will require care if the child is not to suffer consequential harm with the perverse effect of causing just the instability that is feared in his mother’s care.

The child has a strong emotional need for stability and available parenting. When impacted by alcohol or distracted by abusive relationships this care is not provided and the child’s needs are neglected. There is good evidence of the mother being unavailable and of her losing sight of his needs when prioritisation of her own needs come to the fore. His need for physical security and education are directly impacted at such times. However, it is also clear the mother has provided good care to the child. This is evidenced by the strong and positive bond between the two of them. I do not find this to be based on a problematic attachment instead concluding it reflects the love and commitment she shows when focused on his needs.

I have regard to the child’s personal characteristics. Aged 4½ he has now been subject to the local authority’s oversight in one way or another for more than half his life. He is fast approaching the point (which may already have passed) where options for him are limited and the prospect of finding an alternative permanent placement diminishing. This focuses attention on ensuring the right decision is reached now. I have regard to his cultural identity. He has a mixed heritage flowing from his mother’s South American/European background. This is an important aspect of his identity and there is always the risk that this will not be promoted if he does not maintain a strong link with his mother. I do not lose sight of the impending addition to the family although I keep in mind there is of course no established relationship and the child will be a half-sibling. Nonetheless this is likely to create powerful emotions around his place in his mother’s life.

I have had regard to the harm he has suffered and the likelihood of that continuing. As noted this is both through neglect and also through the risk of emotional and possibly physical harm were he to continue to be caught up in the cross fire of an abusive relationship. These factors have the potential to lead to a highly disrupted childhood and may lead to the child developing negative coping strategies which undermine his life-long prospects and his ability to build his own relationships as he moves forward independently in his own life. As I have found he has already suffered such harm, it is more than speculation.

The expanded checklist places a focus on the impact on the child of being severed from his family and adopted. In this case there are accepted strong grounds for a continuing relationship through contact with his mother. But that is proposed to be set at a comparatively low level consistent with the child finding a new family and home life. In my assessment the best that might be achieved, bearing in mind the need to permit his new family to develop a strong and lasting bond, might be 2-3 times per annum. It is entirely possible this contact will not in fact endure into a new placement. The current evidence is of the high emotional trauma the child is suffering from the diminution of his relationship with his mother. This is not reflective of negative qualities in their relationship but of a strong and positive desire to have his mother as a central part of his daily life. This continues to impact notwithstanding the child has now settled into a positive and nurturing foster placement. This exemplifies the impact that might be faced by a more significant severance of family life. I accept this might be managed and addressed through good ‘therapeutic’ parenting but there can be no guarantees the child will fully engage with such parenting. There is a risk of the child disrupting the placement in a search for a return to his mother. I have commented as to the potential for the arrival of the new child to create a further complication to an already challenging situation. This is not to advocate for full severance of the relationship but in maintaining the relationship one has to be realistic as to what additional impacts will arise. Given the evidence I have I consider the child will be significantly impacted by seeing his new half-sibling being able to remain in his mother’s care and of the child coming to contact and then leaving with his mother. This may cause the child to reject his mother but this will not resolve the situation at an emotional level. The guardian’s concerns as to the correctness of an adoptive outcome were further shifted when she reflected on this point. I do not say these matters cannot be addressed. But this will be a more difficult challenge as the child ages. The current advice suggests one may be expecting a search for up to around a year or so. By this time he will be closer to his 6^th birthday.

I have commented on the positive relationship between the mother and child. It has plain value to both of them and through her commitment to contact I can conclude it has the likelihood of continuing to provide such value. On my assessment of the evidence the mother is likely to continue to engage with contact. She struck me as a stoic individual in her engagement with the final hearing. This is not a case where I consider the relationship is precarious and likely to fall away on the making of an order. The real question posed by this case is the ability of the mother to provide a secure environment in which the child can have his welfare needs met to a good enough standard on a sustained basis. The local authority are entitled to say that this was not being done prior to the commencement of proceedings and that the evidence gathered during the proceedings is not altogether positive but rather shows periods of continuing instability which would have likely impacted negatively on the child should he have been in the mother’s care.

There are three realistic options in this case. The local authority contends the only option that will meet the child’s needs throughout his life is for him to be placed for adoption. The guardian considers the case finely balanced between this outcome and the making of a care order only with a plan of long term foster care and the potential for rehabilitation if positive change is maintained. The child’s mother contends for a return to her care under a supervision order. Each of these must be weighed in the balance.

If I agree with the local authority I will be sanctioning an outcome which will likely ensure the child is not faced by the challenges that have impacted his early years. I can proceed on the basis that adopter carers will be selected to ensure his needs are properly met. It may be they have the capacity to provide a level of therapeutic care although this cannot be guaranteed. Further such an outcome will bring with it the potential for permanency for the child in a natural environment without the continuing role of the local authority and the stigma and difficulty of the same. It may have the potential to support contact and thus the child’s identity although this would likely be set at a low level were it to be the case. In reality this is the chief difficulty with the option in that it will likely have a highly negative impact on the existing relationships and in doing so will itself likely be associated with a level of emotional trauma to the child. One of the challenges of the case is assessing whether this will likely be overcome successfully or whether prioritisation of this option simply causes the child a different form of life long harm. It is recognised that adoptions can fail and when they do the harm can be very significant. For such a child the experience is of losing a second permanence. The risk of breakdown cannot be overlooked in this case.

A plan for long term foster care is the hybrid which will permit a higher level of contact (but likely less than is currently the case). In doing so it will address an emotional need of the child but it will still leave in place the trauma currently experienced. It will permit the potential for rehabilitation against the permanent severance linked to adoption. It will preserve the links with regard to identity and culture. Such a placement will not seek to replicate a forever family. But this is the obvious problem. Absent progress the child will remain under the care of a statutory parent for the balance of his minority. This is a significant period and is likely to be associated with placement moves and the instability that follows from the same. School changes may be required and peer friendships impacted. Throughout this period the child will understand his life is not the norm shared by other children around him. There is good evidence as to the negative impact that a life in foster care can bring to many children and the reduced life chances associated with the same.

Placement into his mother’s care plainly addressed both the relationship and cultural needs of the child. It is the outcome that fits with his emotional desire. As such it has the potential to bring him real positives. There is evidence of loving care when the mother is available. It would permit a relationship with extended family. The difficulty is as to the impact on the child if the mother were to continue behaving in the manner found within the threshold. If this were the case the harm would continue and at some point it is likely this would cross a threshold such that any positives of the relationship were entirely lost. The real challenge with this outcome is the uncertainty that exists at a point of life long decision making. The proceedings have been ongoing for sufficient time to demonstrate change yet the local authority argue this has not been demonstrated. If they are right then how can it be right to take the chance of placing the child back into his mother’s care?

In reaching my conclusions I have had regard to the recent decision of N (A Child: Placement Order: Proportionality) [2025] EWCA Civ 1541. This case does not set new principles but reminds the court of the necessity for a robust proportionality exercise when considering a stark interference in family life. I consider these principles apply whether one is at the boundary between a care order and home life, as when one is at the boundary between care and placement, although the justification required in the latter case is set at a higher level. I also bear in mind that in that case the risk was forward looking and had not yet materialised and might never do so whereas in this case there is good evidence of harm being caused.

Nonetheless I consider it helpful to set out the principles as explained by Peter Jackson LJ.:

I am particularly drawn to paragraph 42 when considering the appropriate disposal in this balanced case. The professionals for reasons which I understand have placed a particular focus on the events of April to June 2025 in reaching their conclusions. I understand why. The mother knew there was a particular focus on her ability at this point and a chance to show an ability to take the child back into her care. Yet at this point in time she let herself down and prioritised her own needs. Whatever the reason for the same this decision making lost sight of her child. It is hardly surprising that the professionals fall back on this when considering what the future holds.

Yet it would be wholly wrong to view this period as the only chance available to the mother and to judge her success through the prism of this period without regard to the bigger picture. Applying due weight to this period of failure but also regard to the full period since proceedings commenced suggests a more positive conclusion. Further one must bear in mind three points. First, during the period of April-June the mother did not have the child in her care. Second, the results only conclusively indicate excessive consumption for the one month (May-June) and the balance period is taken from a result that captures the whole period. Third, the evidence is not of the mother being dependent on alcohol and thus needing to abstain. In this context I must question the justification this evidence can supply to a decision to fully sever family life. I accept her non-attendance at contact for a limited period speaks of her being impacted but this must be viewed across the whole period.

I do of course keep in mind the cocaine use. On balance I accept the account given by the mother. It doesn’t excuse her behaviour but it places it in context. I have no evidence to suggest this was a previously concerning feature or that it has endured. It appears to me to have been a component of a short period of failure surrounded by poor choices as to friendship groups and a loss of focus. But I must ask whether this is a likely risk into the future when having regard to all the evidence.

I have drawn a more positive conclusion having regard to all of the available evidence in this regard. Faced by her pregnancy the mother has acted appropriately. This shows both capacity and motivation. I am confident this was contributed to by her re-focus on this case and taken together these features appear to have reset her attitude. Any assessment cannot and should not lose sight of this. It is material evidence notwithstanding it falls outside of the period of focus presented by the local authority.

I consider insufficient weight has been given to the accepted improvements in contact. This evidence is clear and impressive. I am in no doubt it is in part a function of the changes noted above but I judge it is also a marker of a change in attitude. I can only speculate as to what this case would look like were the current circumstances to have been the circumstances during the 12-week period referenced above. But it is difficult to escape the conclusion that the suggested outcomes would be markedly different and would be focused on rehabilitation. Once again I consider this does not become irrelevant due to the timing of the change. It is change and needs to be assessed as such. Moreover, it is the current reality and has been the case (in my assessment for a period now nearing 6 months). This is a period not far from that posited by the experts to show sustained change.

For my part I struggle to understand why it is at this very point that I am asked to sever family life. My sense is that professional thinking crystallised following the April-June period. Again I understand the impact this had on the professionals but I have a duty to assess the case as I find it based on all the available evidence. Time does not stand still, parents are encouraged to continue to make efforts to change and where this occurs it must be appropriately weighed in the balance.

I am also entitled to rely on my assessment of the mother although I approach this with care. I was impressed by her presentation. She was realistic and frank. I consider her explanations were plausible and cogent. I am critical of her decision making but I nonetheless do not write her off. She has engaged with services albeit she can be criticised for not utilising these. She continues to be open to engagement. I find this to be genuinely motivated not just for the proceedings. I am confident she is now looking to the future in a more positive way.

I do not approach the case with rose tinted lens. There remain challenges and work still to be done. The mother has housing issues as often seen by the Court. But she has sought and obtained employment, she has no mental health issues and no chronic issues around drink or drugs. The evidence does not suggest a continuing abusive relationship or indeed the same during these lengthy proceedings. She has a firm and loving bond with her son. She was described as an active out-doors mother. She plainly has much to offer to her son if she can make the right decisions.

In this case I disagree with the professionals for the reasons set out above. The facts are not such as to justify the severance of family life and the extreme outcome of adoption. Something else will do and is before me. The negatives of adoption far outweigh the positives on the facts of this case. It is not without risk but these risks can and should be confronted having regard to the welfare needs of the child. I agree with the guardian that this is a finely balanced case but I set this at the boundary between care and return home. In my assessment the evidence justifies the making of a supervision order and the return of the child into his mother’s care. I judge she has the ability to provide him with good enough care and has demonstrated this ability over a sustained recent period. She will require continuing support and she will need to continue in her efforts. There may be traps ahead which require navigation around, but I consider the child’s welfare is most consistent with this outcome.

In this judgment I have made little reference to the father and his case. This is because the focus of the case has been on the ability of the mother to provide care. The father attended the final hearing on 2-days and opposed placement but supported a care order. If a placement order were made, then he sought some opportunity for contact. If the order were not made, then he sought to establish contact. I consider this will be a matter for the LA working through the supervision order to consider in conjunction with the mother the right approach following an appropriate risk assessment. In the circumstances it is premature to be setting out contact expectations.

I intend to make a supervision order to support the placement for 1-year. I will hand down this judgment at 9.30am on 9 January 2026 at a remote hearing. I hope this will give time for a support plan to be completed. I would expect the local authority to commence its transition plan prior to this date. The interim care order remains in place pending handing down. This judgment can be shared with lay and professional clients. I will receive any corrections and requests for clarification alongside any redactions for publication by 4pm on 5 January 2026.