Risk Mitigation and Proportionality in Child Placement Orders: A New Standard under CA 1989

Introduction

This commentary examines the Court of Appeal’s decision in M (Care Order: Risk: Family Placement) [2025] EWCA Civ 163. The case involves the long-standing care proceedings concerning an 18‐month‐old infant, M, who has lived exclusively with her mother since birth. The proceedings were initiated against the background of significant concerns regarding the father’s prior sexual offences and ongoing risk factors, leading to an initial care order aimed at removing M from her mother’s care and placing her with her paternal grandparents. Central to the dispute is whether the mother has a sufficient capacity to protect M from the risk posed by her father in the future, alongside a detailed evaluation of the two placement options available – continued care by the mother or placement with Mr and Mrs G, the paternal grandparents. The case raises complex issues regarding risk management, mitigation measures, the proportionality of state intervention, and the need for a comparative evaluation of realistic alternatives in family placements.

Summary of the Judgment

The judgment, extensive and methodically drafted, primarily focused on the future risk posed by M’s father – an untreated sex offender with a history of serious sexual offences – and examined whether the mother could effectively shield M from this risk. Relying heavily on the expert evidence of Dr Tanya Garrett, a forensic psychologist, the Judge determined that the father poses a “significant risk” of sexual harm to M both immediately and as she grows older. Equally, the judgment scrutinized the mother’s capability to ensure M’s safety, noting her evolving stance following evidence regarding the father’s use of Tinder to contact another woman. Although the mother had historically demonstrated high quality care for M, the Judge was not convinced that her recent “epiphany” would prove sustainable. Moreover, the comparative analysis between the mother’s care and that offered by Mr and Mrs G was found wanting due to a lack of direct evidence from the grandparents.

Ultimately, the Judge concluded that no available support or mitigation measures would sufficiently offset the risk of harm if M remained with her mother, thereby justifying a care order for placement with the paternal grandparents. However, on appeal, the Court found that the trial judge’s risk assessment – particularly regarding the potential for risk mitigation and the absence of a robust side‐by‐side evaluation of placement options – was flawed. The appellate Court allowed the mother’s appeal, set aside the existing care order, and remitted the matter for re-hearing with directions for further case management.

Analysis

Precedents Cited

The judgment makes notable reference to several precedents that have shaped the evaluation of risk and the proportionality tests under Section 1(3) and Section 31 of the Children Act 1989. Notably:

• Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59 – The Court acknowledged Baker LJ’s view that lengthy judgments may be summarized succinctly once the threshold criteria have been met.
• Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2762 – This case’s guidance on proportionality was fundamental to the Judge’s reasoning in assessing future risks and in weighing the adverse impact of removal from the mother’s care.
• Re T (Children: Risk Assessment) [2025] EWCA Civ 93 – The structured risk assessment questions published in this decision (as highlighted by Peter Jackson LJ) provide a framework within which the factual and welfare elements of the case were scrutinised.
• Additional cases such as Re D (Child: No.3) [2016] EWFC 1 and Re JW (Child at Home under a Care Order) [2023] EWCA Civ 944 were cited in relation to the balancing of the child’s welfare against the interference with parental rights, particularly under Article 8 of the European Convention on Human Rights.

Legal Reasoning

The Judge’s decision was anchored on a detailed risk assessment, with a heavy reliance on the forensic opinion provided by Dr Garrett. The reasoning proceeded as follows:

1. Risk from the Father: The expert evidence indicated a significant potential for future sexual harm, especially as M grows older. The Judge emphasised that the father’s history – marked by minimisation and denial of his past offences – meant that any future contact could expose M to coercive and grooming behaviours.
2. The Mother’s Capacity: Although the mother had demonstrated a high level of emotional warmth and quality parenting for over a year, systematic concerns were raised regarding her historical reluctance to challenge or even inquire critically into the father’s past. The testimonial accounts revealed that even a late “Damascene moment” was insufficient to dispel concerns about her long-term ability to protect M.
3. Mitigation and Proportionality: The Judge recommended that, in theory, if the mother could demonstrate three key mitigating requirements – complete emotional and physical separation from the father, an informed understanding of his offences and grooming techniques, and full engagement with recommended therapeutic interventions – then the risk might be manageable. However, the Judge ruled that these conditions had not been adequately tested or assured at the time.
4. Comparative Evaluation: In comparing the merits of maintaining M with her mother versus placement with Mr and Mrs G, the Judge’s analysis was coloured by alleged shortcomings in the mother’s protective measures. However, the absence of direct evidence from the grandparents weakened the side-by-side evaluation, contributing to an imbalanced analysis.

Impact on Future Cases and the Relevant Area of Law

This judgment introduces a nuanced approach to child placement orders by underscoring the necessity for:

• A balanced, holistic evaluation that considers not only immediate risk assessments based on expert opinion but also acknowledges effective interim protective measures that have been in place.
• Reinforcing the principle of proportionality – that the removal of a child must be justified by a clear demonstration that no mitigation strategies can reasonably reduce the risks.
• A more rigorous comparative evaluation process, particularly when considering alternative carers within the child’s family. Where natural attachment and longstanding care relationships exist, the threshold for state interference should be applied with even greater caution.

In effect, the appellate decision is likely to prompt future courts to re-examine and potentially broaden the scope for mitigation measures and to require a more detailed direct evaluation of all prospective placement options before making a determination that permanently severs the primary carer-child relationship.

Complex Concepts Simplified

A number of legal concepts that are central to this case may be clarified as follows:

• Risk Assessment: This involves a detailed evaluation of the likelihood, nature, and impact of potential harm to the child, particularly in light of past offending behaviours and the possibility of future infractions.
• Proportionality: A legal principle requiring that any state intervention, especially one as drastic as removing a child from parental care, must be justified by measures that are necessary and not excessive in relation to the risks involved.
• Mitigation Measures: These are steps which may be taken to reduce risk. In this case, they center around the mother’s promises of separation from the father, engagement with therapeutic interventions, and adherence to structured safeguards which could theoretically make remaining in her care a viable option.
• Comparative Evaluation: This is a side-by-side analysis of the merits and demerits of the available placement options. It requires that the judge balances the child’s relationship with the primary carer against the potential benefits and drawbacks of alternative carers.
• Article 8 Rights: This refers to the right to respect for private and family life under the European Convention on Human Rights. Interventions that disrupt the family unit must be shown to be necessary and proportionate to the risk faced.

Conclusion

The Court of Appeal’s decision in M (Care Order: Risk: Family Placement) [2025] EWCA Civ 163 marks a significant moment in the way courts balance risk assessments against parental rights and the child’s welfare. The judgment illustrates that while expert evidence on potential future harm is critically important, it must be weighed against the effectiveness of interim safeguards and the natural bond between a child and its primary carer. Moreover, the decision highlights the need for a comprehensive, balanced, and comparative evaluation of all placement options before authorising a permanent separation from a parent. In granting the appeal and remitting the case for further case management, the Court reinforces that any state intervention into family life requires a robust justification with due regard to mitigation, proportionality, and the least disruptive approach in safeguarding the child’s best interests.

This new standard is likely to influence future care order proceedings under the Children Act 1989, prompting greater judicial scrutiny of both risk management strategies and the comparative merits of familial care arrangements.