1. The concept of proportionality often lingers in my mind when preparing for a final hearing. It’s like the persistent dripping tap that, despite multiple checks, resumes dripping the moment you sit down. This nagging thought compels me to re-examine my papers, seeking the connection that leads professionals to conclude that due to deficiencies in parenting, a permanent separation is necessary. Where is the nexus between point A and Point B? Sometimes, the risks don’t seem to justify the outcome.

2. In recent times, numerous Court of Appeal decisions have addressed the concept of proportionality. Often, this principle is subtly embedded within different terminologies. However, the recent case of Re N directly confronts the common understanding of proportionality

3. Lord Justice Peter Jackson delivered the Judgment, he being no stranger to proportionality. The facts of Re N were perhaps a little different to so many of the care cases that we deal with. To keep the reader engaged the following bullet points sets out the factual matrix.

4. So here are the facts:-

  • L, the subject child, was a boy of 2 years of age.
  • The mother was a 57 year old Japanese national. She was a professional person, who lived and worked in this country for a number of years.
  • In 2015 her husband died.
  • The mother had no support from family in this country. She decided to have a child, and L was born in October 2023 after assisted conception overseas.
  • 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
  • When L was 3 weeks old, he and his mother went to what was the first of three separate placements which lasted for the next 21 months. 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 final hearing took place between 11th and 15th August 2025 before Recorder Magennis.
  • At final hearing the mother contested that the threshold criteria had been crossed for the making of public law orders but note that this was not a matter subject to the appeal.
  • The court at first instance found that threshold was crossed on the likelihood of harm.
  • The court then went on to make a Care Order and a Placement Order. The court of appeal quotes heavily from the judgment at first instance, and it is, time permitting, worthy of a read.
  • The mother appealed (note new solicitors). None of the trial counsel appeared in the Appeal hearing.

5. The court having set out the facts (in a lot of detail all of which was required) Lord Justice Peter Jackson then considered the principles. As he said, “unusual cases prompt a return to first principles”.

Bullet points of those principles follow:-

  • 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.
  • Y v United Kingdom (2012) 55 EHRR “ [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.”
  • LJ Peter Jackson referred to the case of Re F (almost a classic now) whereby he said “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.
  • Back to the analysis of the court, LJ Peter Jackson said as follows “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.” As already mentioned, the findings of threshold were never appealed but it is helpful to read what the court of appeal’s view was on the issue. In short, not the most serve but the Rubicon was crossed.

7. The following passage from Lord Justice Peter Jackson is worth remembering. “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.”.

8. So, the Court of Appeal allowed the appeal. But why and what were the conclusions we can take from this case. Again, hats off to the court for giving me some fuel for future submissions. This is what LJ Peter Jackson said :-

  • “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” AND “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 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.”

9. I think Re N is a helpful reminder to all practitioners that a linear approach to cases is not helpful. Too often we are faced with evidence of risk of harm that just gets over the threshold criteria. In cases involving young children, with no support networks, how often are parents faced with care plans for adoption? Often there is a gaping hole in the analysis, where the Re F factors are forgotten or marginally considered but given the cold shoulder. Or else, we get the inevitable oral evidence from the social worker that “ the parents will need to have 24 hour supervision” As quoted above “the court needed to maintain a sense of proportion and keep the bigger picture in view.” Although the facts of Re N are unusual, I am pleased that the Court of Appeal had an opportunity to deal with a case like this whereby the feared harm had not happened and might not materialise.

William Green
Trinity Chambers.