Court of Appeal sets aside care and placement orders, finding court needed to “keep bigger picture in view”

In N (A Child: Placement Order: Proportionality) [2025] EWCA, Lord Justice Peter Jackson, with whom Lord Justice Singh and Lord Justice Warby agreed, said: “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.”

The case concerned L, a two-year-old boy, and his mother, a Japanese national living in England.

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.

When L was two weeks old, he and his mother went to the first of three placements that 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 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.

Following a professional assessment, Dr Fitzsimons considered that the risk of physical violence to L from his mother was "very low".

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. The Recorder made a care order and a placement order in respect of L.

In her judgment, the Recorder concluded: “I conclude that L is at risk of significant physical harm were he to be cared for by his mother.

“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.

“[…] 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 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.”

The mother appealed the Recorder’s decision.

Counsel for the mother submitted 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.

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."

Outlining relevant legal principles, Lord Justice Peter Jackson said: “This is 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.”

Concluding the case, Peter Jackson LJ acknowledged the recorder’s “grasp of the evidence” and the care that she took in the case.

He said: “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.”

He continued: “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.

“[…] 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.

“[…] 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. […] 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.”

Allowing the appeal, he concluded: “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.”

The Court of Appeal set aside the care and placement orders, substituted an interim care order, and remitted the applications for care and placement orders (if pursued) to the High Court.

Lord Justice Singh and Lord Justice Warby agreed.

Lottie Winson