Placement Orders and Proportionality: Re F (a child)

Risk assessments in family law

We are all acutely aware of the use of the term “risk” in the cases we deal with on a regular basis. Re F (A Child)(Placement Orders: Proportionality) Neutral Citation Number: [2018] EWCA Civ 2761 provides a timely opportunity for Peter Jackson LJ to remind us of the proper process in assessing just what type of risk may be present. Joseph Lynch looks at the key points and ramifications of this decision.

The precise nature of any risk to a child’s wellbeing is always factored into the decision-making of a local authority before a final care plan is approved.

With the term being so freely used, there is a likelihood that familiarity has bred contempt. It may be that, in some cases, the actual nature and type of risk is not being fully explored.

In Re F, Peter Jackson LJ reminds us of the proper process that must be gone through before conclusions are reached. At paragraph 2 he states:

  1. In short summary, there is no complaint about the judge’s legal self-direction, his findings of fact or his conclusion that the threshold for intervention was met. Further, he identified
    (1) The type of harm that might arise.
    (2) The likelihood of it arising.
    But he did not sufficiently address:
    (3) The consequences: what would be the likely severity of the harm to Robbie if it did come to pass?
    (4) Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?
    (5) The comparative evaluation: in light of the above, how do the welfare advantages and disadvantages of Robbie growing up with his mother compare with those of adoption?
    (6) Proportionality: ultimately, is adoption necessary and proportionate in this case?

The parties supporting a plan of adoption must be able to specifically identify the type of risk that is involved, how likely it is to happen, and what the likely consequences might be; without that information it cannot be said that all options are being properly considered.

In this case the issue of alcohol and dishonesty were at the forefront of local authority thinking when they identified risk. The analysis of how her drinking and dishonesty actually put the child at risk was missing though, it is for the local authority to prove their case and that their plan is appropriate.

There is a world of difference between persistent alcoholic consumption and occasional binge drinking, both suggest a problematic relationship with alcohol but the impact and risks they pose are very different. It is these nuances of issues which are often lumped together under a headline of risk.

The actual impact of that risk and how it can be managed is often left undone as once a ‘risk’ has been identified the plan is sent in one direction with other options being deemed unrealistic.

Alongside this the true significance of lies and lack of insight must be looked at in the context of assessing welfare. They must be properly assessed. Lies are significant only to the extent they impact on the welfare of the child and undermine safeguarding measures put in place. Sir James Munby P deals with this point in Re A (A Child) [2015] EWFC 11 at [12]:

“In the present case, as we shall see, an important element of the local authority’s case was that the father “lacks honesty with professionals”, “minimises matters of importance” and “is immature and lacks insight of issues of importance”.

Maybe. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority’s evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.”

On occasion it may be suggested to social workers that they have reached a conclusion first and then sought to fit the facts/evidence they have to meet that conclusion. If they are asked during the course of the hearing appropriate questions to explore the reason, they say facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z then it likely that the flawed process will be exposed.

As representatives of parents we are often faced with this situation but what we cannot do is allow those who seek to permanently sever a familial tie to do so without fully explaining precisely what the risk is and why it cannot be managed.

Equally when representing a local authority, we must not shy away from pointing out flaws in their case and ensure that if a plan for adoption is approved by the court then it truly is the only realistic option.


Central Chambers has a family team with experience in all types of children’s law proceedings – public and private. Joseph Lynch is the Head of Family at Central Chambers.

If you would like to instruct Joseph Lynch or another member of the family team, please do not hesitate in contacting the family clerks by clicking here or by calling on 0161 236 1133


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