A. Precedents Cited
1) Appellate restraint in welfare decisions
The Court anchored the appellate standard in Re J (A Child) [2005] UKHL 40 and the approach to review and
deference explained in Piglowska v Piglowski [1999] UKHL 27. The Court also relied on
Re H-W (Children) [2022] UKSC 17 (per Dame Siobhan Keegan) for the proposition that where the judge has
adopted the correct approach, an appellate court intervenes only if the judge was “wrong”.
This framework mattered because the Court accepted the first instance judge’s careful fact-finding and the absence of
significant challenge to core evaluations; the appeal therefore turned on whether the proportionality analysis was
sufficiently rigorous and child-specific, not on re-trying disputed facts.
2) “Nothing else will do” and tolerance of imperfect parenting
The Court drew on two foundational statements:
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Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 (Baroness Hale at [198]):
severance of the parent-child relationship demands a very strict test—only where “nothing else will do”, and in many
cases it will be necessary to explore and attempt alternatives.
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Re L (Care: Threshold Criteria) [2007] 1 FLR 2050; [2006] EWCC 2 (Fam) (Hedley J at [50]):
society must tolerate diverse and sometimes harmful parenting; the state’s role is not to eliminate all adverse
consequences of imperfect parenting.
The Court treated these as active constraints in a case where the feared harm had not clearly materialised as actual harm
to the children (beyond exposure concerns), yet the proposed order was the most drastic—adoption.
3) Structured proportionality and risk analysis in adoption/placement cases
The Court emphasised the structured questions mandated by Re H-W (Children) [2022] UKSC 17 at [56], and
aligned them with a line of Court of Appeal authorities:
Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761,
L-G (Children: Risk Assessment) [2025] EWCA Civ 60,
Re N [2025] EWCA Civ 1541, and
Re T (Children: Risk Assessment) [2025] EWCA Civ 93.
The Court used these authorities not to impose rigid “tick-box” compliance, but to identify what was missing: a genuine,
evidenced evaluation of consequences and mitigation possibilities, integrated into the comparative welfare
balance.
4) The Re B-S discipline
The history of the proceedings shows the trial judge herself identified a flaw in the professional evidence by reference
to Re B-S (Children) [2013] EWCA Civ 1146; [2014] 1 WLR 563; [2014] 1 FLR 1035—the absence of a proper
comparative analysis of options, particularly the advantages/disadvantages of placement with the mother versus adoption.
Although that prompted an adjournment and further work, the Court of Appeal ultimately concluded the final proportionality
analysis still fell short in critical respects.
5) Immigration/family court interaction
Dingemans LJ’s concurring remarks draw attention to the relevance of immigration outcomes to family welfare decisions (and
vice versa), citing RS (immigration and family court proceedings: India) [2012] UKUT 00218 (IAC) and
pointing to the 2013 protocols and Form EX660 arrangements. While not determinative of the appeal outcome, this is a
significant operational reminder in cases involving precarious immigration status and parallel tribunal proceedings.
B. Legal Reasoning
1) The facts were largely accepted—so the appeal turned on proportionality
The Court treated the following as essentially fixed: serious domestic abuse findings; inflicted bruising to Z with
inability to identify perpetrator; extensive parental dishonesty; lack of acceptance/insight; and the judge’s finding that
the mother was likely to reunite with the father absent external pressure. The mother’s real challenge targeted the
conclusion that no protective measures could reduce risk sufficiently to avoid adoption.
2) The missing “consequences” analysis
Applying the Re H-W structure, the Court accepted the judge was entitled to find a substantial possibility
of future significant harm. But it found the judgments inadequately addressed a distinct and decisive question:
what were the realistically likely consequences for these particular children if the feared harm occurred?
The Court noted that references to worst-case outcomes (including “death”) lacked evidential foundation on the facts, and
that general statements about domestic abuse (while true in general) were not sufficiently connected to the children’s
actual circumstances and evidential history. In effect, the feared harm was described at a high level of generality, while
the harm of removal was concrete, immediate, and accepted as significant.
3) The missing mitigation analysis—especially the role of DAPO and Children Act orders
The Court’s second linked criticism was that the judgments insufficiently grappled with the range of protective
mechanisms short of adoption. The lead judgment explicitly identified a combination that should have been squarely
evaluated:
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s.31 Children Act 1989 measures (including a supervision order and/or care order mechanisms as
appropriate);
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a Domestic Abuse Protection Order (DAPO) under the Domestic Abuse Act 2021 (not limited
in time; breach is a criminal offence); and
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voluntary and multi-agency supports and monitoring, potentially adding “another layer of vigilance”.
Importantly, the Court did not hold that these measures would necessarily succeed; rather, it held that the first instance
evaluation treated protective possibilities as essentially futile (“worthless”) without sufficiently analysing (i) the
mother’s proven capacity to seek help when abuse occurred in the UK, (ii) the real-world detectability of risk escalation,
and (iii) whether structured legal controls could meaningfully reduce risk below the “nothing else will do” threshold.
4) Proportionality required an explanation of why certain and severe removal harm was outweighed
The Court highlighted the children’s certain future harm if adopted: separation from their primary attachment figure,
placement with strangers, probable further move(s), and uncertainty about sibling placement and cultural/identity needs.
Against that, the feared harm was future and probabilistic. The key deficiency was the absence of a convincing, evidence-led
explanation of why adoption was necessary notwithstanding that asymmetry.
5) Process point: staged judgments and the risk of “surrogate” decision-making
On Ground 2 the Court offered a caution rather than a finding of unfairness: when a case is determined in stages, there is
a risk that intermediate issues (acceptance, insight, risk) become narrower surrogates for the overall welfare decision.
However, the Court ultimately found no serious irregularity causing injustice in the process adopted here.
6) Disposal
Because the proportionality assessment was ineffective and/or the conclusion was wrong, the Court set aside the care and
placement orders, revived interim care orders, preserved the threshold findings, and remitted the matter for a final
welfare determination.