F (A Child : Placement Order: Proportionality)

Factual and Procedural Background

This appeal arises from care and placement orders made by HHJ Vavrecka on 31 August 2018 concerning a child aged 15 months, referred to here as Robbie. The mother appealed the orders, which were subsequently set aside and replaced by an interim care order pending a rehearing of the local authority's applications. The local authority became involved following concerns about domestic violence, parental substance misuse, and mental health issues. The mother had a history of binge drinking linked to anxiety and a violent relationship with the father, who had mental health issues and substance misuse problems. Initial proceedings began in December 2017 when the local authority sought Robbie’s removal due to these concerns, but an interim supervision order was made instead. Following further incidents, including the mother’s dishonesty about alcohol use and contact with the father, Robbie was removed to foster care under an interim care order in June 2018. The local authority then applied for a placement order with a care plan proposing adoption. The final hearing occurred between 28 and 31 August 2018, where the judge approved the care plan and made care and placement orders. The mother appealed, challenging the justification for adoption, the exclusion of return under a care order, and refusal to adjourn the final hearing.

Legal Issues Presented

1. Whether the judge properly conducted a proportionality analysis balancing the nature, likelihood, and consequences of the risks to the child against the welfare advantages and disadvantages of adoption versus placement with the mother.
2. Whether the judge was correct to exclude the return of the child to the mother under a care order as a realistic option.
3. Whether the judge erred in refusing to adjourn the final hearing to allow the mother an opportunity to demonstrate sustained sobriety and honesty with professionals.

Arguments of the Parties

Appellant's Arguments

• The judge failed to carry out a proper proportionality analysis considering the risks and their likely consequences, and did not genuinely compare the benefits and disadvantages of adoption versus placement at home.
• The judgment did not adequately weigh the mother’s current engagement with multiple support services and explain why these would not sufficiently reduce risk.
• The judge wrongly dismissed the possibility of return under a care order without properly considering if essential support could enable safe placement at home.
• The judge set an unreasonably high standard for abstinence and was wrong to refuse a short adjournment, which could have allowed the child’s safe return within a three-month period without prejudicing attachment.

Respondent's Arguments (Local Authority)

• The judgment was internally consistent, detailed, and balanced, reflecting the judge’s advantage in assessing the mother’s evidence.
• The incident at the pub revealed deliberate dishonesty by the mother, justifying concerns about risk and trustworthiness.
• The judge properly considered the available support services and found them insufficient to safeguard the child.
• The case differed from precedent where return under a care order was a viable option because here the risk assessments aligned with the local authority’s view.
• The judge correctly applied legal principles on adjournment, requiring a solid evidential basis, and found the mother’s late efforts insufficient to justify delay.

Guardian's Position

• The Guardian supported the local authority’s plan, emphasizing the risks posed by the mother’s ongoing alcohol misuse, dishonesty, and poor decision-making regarding contact with the father.
• The Guardian highlighted the strong attachment between mother and child but concluded that adoption was the only realistic option to protect the child’s welfare.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re B (Care Proceedings: Appeal) [2013] UKSC 33	Requirement to consider if essential support can enable safe placement at home under a care order.	Referenced to argue that the judge should have considered whether authorities could provide essential assistance to avoid adoption.
Re S (A Child) [2014] EWCC B44	Legal test for adjournment requiring a solid evidential basis to justify delay in final orders.	The judge’s refusal to adjourn was upheld on the basis that the mother’s evidence was insufficient to justify delay.
Re P (A Child) [2018] EWCA (Civ) 1483	Distinguishing cases where there is clear evidence that necessary changes can be made within timescale.	Distinguished on facts; here no clear evidence supported a timely return to the mother.
Re Y (A Child) [2013] EWCA Civ 1337	Significance of lies and lack of insight in threshold and welfare evaluations.	Applied to emphasize that lies are relevant only insofar as they affect child welfare and undermine protective systems.
Re A (A Child) [2015] EWFC 11	Necessity to explicitly link facts relied on to the conclusion that the child is at risk of significant harm.	Used to highlight the need for clear reasoning connecting evidence to welfare conclusions, which was lacking here.
Neath Port Talbot Case [2013] EWCA Civ 1227	Context of return under care order differing from cases where court and local authority assessments diverge.	Distinguished as the local authority and court assessments of risk aligned in this case.

Court's Reasoning and Analysis

The court accepted that the judge correctly identified the threshold for intervention and the risks posed to the child, including domestic violence, parental substance misuse, and mental health concerns. The judge’s factual findings and legal self-direction were not challenged. However, the appellate court found that the judge’s analysis lacked critical components necessary for justifying an adoption order. Specifically, the judge did not sufficiently assess the likely severity of harm if it occurred, nor did he adequately consider the potential mitigating effects of available support services. The comparative evaluation of welfare advantages and disadvantages between adoption and placement with the mother was not properly conducted, nor was a thorough proportionality assessment made to justify the necessity of adoption.

The court emphasized the importance of a detailed risk assessment focusing on the type, likelihood, and consequences of potential harm and the impact of lies and lack of insight in the welfare evaluation. While acknowledging the mother’s vulnerability and history of risky behavior and dishonesty, the court noted the good quality of the relationship between mother and child and the absence of serious mental health or addiction issues.

Ultimately, the court concluded that the evidence did not meet the high standard required to justify adoption. The judge’s rejection of return under a care order and refusal to adjourn were not clearly erroneous but alternative options, such as continuation of the interim care order with close monitoring, had not been sufficiently explored. The court stressed the need for a rehearing by a different judge, with directions to expedite proceedings given the child’s developmental stage.

Holding and Implications

The appeal was allowed. The care and placement orders were set aside and replaced with an interim care order pending a rehearing of the local authority’s applications.

The decision directly affects the parties by requiring reconsideration of the child’s care plan with a more rigorous analysis of risk, welfare, and proportionality, and with consideration of less intrusive options than adoption. No new legal precedent was established, but the judgment reinforces the necessity of thorough welfare evaluations and proportionality analyses in care proceedings involving adoption.