Re F (Children: Placement Orders: Proportionality) [2026] EWCA Civ 990 – A reminder of the need to properly analyse the ‘nothing else will do’ test

Lucy Lodewyke writes about this recent appeal handed down on 29 July 2026, in which the Court of Appeal allowed a mother’s appeal against care and placement orders made in respect of her two young daughters and set aside those orders as neither necessary nor proportionate.

The decision is a significant reminder of the “nothing else will do” test for adoption and of the appellate court’s willingness to intervene where a welfare evaluation fails properly to weigh the consequences of future harm and the potential for support to be provided.

A striking aspect of the case was that at the time of final welfare decisions the children had always lived with their mother and were apparently thriving in her supervised care. Even after an interim care order was made within the proceedings, the children were never separated from their mother. No one suggested at any interim stage that the children should be removed. This context is important when assessing the analysis of risk and its impact on the welfare decisions.

Background

Following interim care orders made by Her Honour Judge Scannell in May 2025, the case was considered at three substantial hearings across fifteen days of court time. The first hearing in November 2025 dealt with threshold and hearings in April and May 2026 dealt with welfare. In her threshold judgment, the judge found that the mother’s original account of multiple assaults, including non-fatal strangulation, was likely true; that bruises on the youngest child’s ear and abdomen were inflicted injuries caused by excessive force, with a real possibility that either parent was responsible; and that both parents had lied repeatedly to the court, the Home Office, police, and social services, obstructing the assessment of risk. Threshold was met on the basis of significant physical and emotional harm arising from the child’s injuries, the oldest child’s exposure to domestic violence, the mother’s failure to protect, and parental dishonesty.

The local authority initially proposed rehabilitation but, after the parents were found not to have accepted professional concerns, revised its plan to adoption, supported by the Children’s Guardian.

In her April 2026 judgment the judge concluded that the mother was not likely to change, that no protective mechanisms could be effective without her openness and honesty, and that her indicated divorce was likely a litigation position rather than genuine change.

However, the judge found flaws in the analysis put forward by the local authority in relation to its care plan for adoption, which had failed to set out a comparative analysis of the competing options.

Decision at First Instance

In her final judgment of 7 May 2026, the judge undertook that comparative analysis and concluded that the risks of the mother’s care were too great, that adoption was the only option capable of meeting the children’s needs, and that it was a proportionate interference with the family’s rights.

Grounds of Appeal

The mother advanced two grounds of appeal. Ground 1 contended that the care and placement orders were neither necessary nor proportionate, particularly given that the last domestic abuse episode was more than three years earlier, that the child’s injuries were not the most serious and appeared isolated, that the mother had complied with all professional requirements for over twelve months, and that separation would cause the children emotional harm. Ground 2 argued that the welfare evaluation was procedurally flawed and had amounted to a linear rather than a holistic assessment of the realistic options.

The Court of Appeal Decision

The Court of Appeal rejected Ground 2. The Court found that, although the judge had determined welfare over two hearings and given two separate judgments, her reasoning was not linear. Peter Jackson LJ found that there was no solid basis for concluding that the professional witnesses had been improperly influenced by the course the judge took. He nonetheless observed that it would have been better to give a single judgment in May rather than making strong statements about risk at what was still an interim stage, which had allowed arguments about a perception of unfairness to arise. The Court determined that the manner of the decision did not amount to a serious irregularity causing injustice.

The appeal succeeded on Ground 1. The Court reaffirmed the strict appellate threshold: it may intervene only if the decision is plainly wrong, per Re J (A Child) [2005] UKHL 40 and Re H-W (Children) [2022] UKSC 17.

It also emphasised that this was not an obvious case for adoption, as well-attached children in families without the main markers for harm are not usually adopted on findings of this intermediate level of seriousness.

The Court similarly reiterated the “nothing else will do” test from Re B (A Child) [2013] UKSC 33 and Hedley J’s statement in Re L (Care: Threshold Criteria) that society must tolerate diverse standards of parenting and that the state cannot spare children all the consequences of defective parenting.

Applying the structured questions from Re H-W and Re T (Children: Risk Assessment) [2025] EWCA Civ 93, Jackson LJ accepted that the judge was entitled to find a substantial possibility of further significant harm if the children were placed with their mother in the community. However, that conclusion alone could not be decisive where there were very strong opposing welfare factors.

The welfare assessment was criticised in two key ways. First, there was an insufficient focus on the realistically likely consequences for the children of the harm they might suffer. Second, there was insufficient recognition of the state’s potential to support the children within their family through supervision orders under s.31 of the Children Act 1989, a Domestic Abuse Protection Order under the Domestic Abuse Act 2021, and voluntary interventions by support services.

The Court noted that the certainty of harm from separation, a placement with strangers, and possible sibling separation had to be weighed against the likelihood of future harm, and that it could not identify why the judge considered the certain harm of removal to be so outweighed by future risks as to make adoption necessary.

The Court described the situation as “bleak” if the child protection system could contribute nothing to the safety risks, particularly where they had not considered the protection a supervision order could offer.

The Court concluded that the decision did not satisfy the very strict requirements for severing the children from their family, either because the proportionality assessment was not undertaken effectively or because the conclusion was wrong.

The appeal was allowed and the care and placement orders set aside, with the interim care orders revived and the judge’s unappealed threshold findings preserved. The matter was remitted to the Family Court for a final welfare determination.

Case comment

The judgment provides a real reminder that a finding of a real risk of future harm is not, by itself, sufficient to justify adoption, particularly when separation causes its own risk of harm. Courts must go on to assess the likely consequences of that harm and, critically, the extent to which risk can be reduced or managed by the range of protective tools available before concluding that “nothing else will do”.

The full judgment can be found here