1. Here we go, Lord Justice Peter Jackson is back tackling the best subject in the world, proportionality.
2. The final hearing of the case in the County Court was segmented for a number of reasons, resulting in two separate judgments. On appeal, those judgments were treated as a single judgment.
3. The parents were from Pakistan. The parents’ immigration status was described as precarious. The concerns of the local authority concerned domestic abuse, injuries to one of the children and parental dishonesty.
4. For various reasons, the first final hearing was treated as a threshold hearing only. The court made findings, and these were not subject to appeal.
5. A welfare hearing took place between 16-20 March 2026. The Local Authority, supported by the Children’s Guardian, sought a care and placement order. The hearing did not achieve its intended purpose. By the end, the judge was not satisfied that the analysis undertaken by the local authority and the Guardian conformed with the requirements of Re B-S. However, the Judge did give a substantial judgment dealing with the issue of risk.
6. The third hearing took place in May 2026, the judge having heard further evidence and submissions. The Judgment that followed approved the local authority plan for adoption.
7. The mother appealed on two grounds, firstly, that the making of a Care and Placement order was not necessary and proportionate and secondly, that the Judge’s welfare evaluation was procedurally flawed and amounted to a linear rather than a holistic assessment of the realistic options.
8. LJ Peter Jackson dismissed the second ground of appeal. However, and in saying “I have not found this an entirely easy appeal”, LJ Peter Jackson did allow the appeal on the second ground.
9. The Judge referred to Re H-W (Children) [2022] UKSC 17 as well as the absolute classic text from Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050.
10. LJ Peter Jackson went on to say: Taking all these matters into account, my conclusion is that, despite unanimous professional advice and the care that she evidently took, the judge’s welfare assessment fell short in two linked ways. The first is that there was an insufficient focus on the realistically likely consequences for these children of such harm as they were likely to suffer in maternal or parental care. The second was that there was an insufficient recognition of the potential ability of the state to support these children within their family by means of a combination of:
(i) supervisory or coercive measures under s.31 of the Children Act 1989
(ii) a Domestic Abuse Protection Order (DAPO) under the Domestic Abuse Act 2021, which can exist without limit of time and breach of which is a criminal offence;
(iii) any voluntary interventions by local authority support services and by other agencies working with the parents, who might (if properly briefed) add another layer of vigilance.
11. To that end, my favourite line in the judgement is as follows: “It is a disappointing, even bleak, conclusion that the child protection system could contribute nothing towards increasing the safety of the children of this unreliable but otherwise able victim of domestic abuse.”
12. About proportionality, the Judge also noted that “The judge was also right to look at the totality of the risks, but again the court must always maintain a sense of proportion and base its risk assessment on conclusions that can fairly spring from the evidence.” Further, “The judge vividly acknowledged most aspects of this certain and significant harm, for example in the May judgment at [70], but despite repeated readings of the judgments I cannot identify why she considered that it was so outweighed by the future risks as to make permanent separation and adoption necessary. If she considered that any undetected resumption of domestic abuse would be unacceptable, that would be disproportionate. As Hedley J said, some children will experience disadvantage and harm and, as I put it in Re T, risk assessment is not about the elimination of all risks.”
13. This case nicely sets out the importance of the court analysing risk, the likelihood of the risk and its consequences for the children. Importantly, how can that risk be reduced or managed?
14. The court must then consider other welfare factors and determine which realistic plan best meets the child’s needs. Of course, if the plan interferes with the child’s Article 8 rights, are the orders sought necessary and proportionate?
Will Green
