In the matter of H-W (Children) [2022] UKSC 17

Care orders were made to remove three children from their mother due to risk of sexual harm from her adult son. The Supreme Court held the judge failed to conduct a proper proportionality analysis comparing available options, including less interventionist measures, against the harm of removal. The case was remitted for rehearing.

Facts

The appellants were M (mother) and F3 (her partner), who cared for children C, D and E (aged 14, 11 and 9 respectively) at home. The family had a long history of local authority involvement due to concerns about neglect and sexual risk. In November 2019, M’s adult son A sexually abused child E whilst staying at the family home when M and F3 were distracted. Care proceedings were initiated in March 2020. The judge made care orders approving removal of the three children into separate long-term foster placements with contact limited to six times per year.

Background

M herself had been in public care and suffered neglect and sexual abuse as a teenager. A non-molestation order existed against A preventing him from attending the family home, and an injunction against F2 (father of E and a previous abuser of M) had been in place since 2014. Despite these measures, the local authority case centred on M and F3’s failure to protect E from A and failure to notify social services promptly after the abuse.

Issues

The Supreme Court formulated two questions:

1. Whether it was necessary as a matter of law to assess: (a) the likelihood of sexual harm; (b) the consequences of such harm; (c) the possibility of reducing or mitigating the risk; and (d) the comparative welfare advantages and disadvantages of available options.
2. Whether the judge erred in law by failing to make any or proper assessment of these matters.

Judgment

Proportionality and Necessity

Dame Siobhan Keegan, delivering the unanimous judgment, emphasised that care orders engage Article 8 ECHR rights and can only be made if proportionate and necessary. She cited the established standard from In re B-S:

The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option… What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

The Judge’s Error

The Court found that whilst the judge thoroughly dealt with facts and evidence and correctly directed himself on proportionality, his judgment was flawed. Dame Siobhan Keegan stated:

The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage.

Significantly, the judge failed to mention the efficacy of existing protective orders (the injunction against F2 and non-molestation order against A), did not deal with point (g) of the welfare checklist concerning the range of available powers, and provided no comparison between the harm of leaving children at home versus removing and separating them.

Approach on Appeal

The Court confirmed that appeals proceed by way of review, not rehearing, and appellate courts should not undertake fresh proportionality evaluations. However, where a judge has not conducted the required side-by-side analysis, the decision is flawed and must be set aside.

Implications

This judgment reinforces the requirement for rigorous proportionality analysis in care proceedings. Judges must explicitly evaluate all available options, including less interventionist measures such as supervision orders and protective injunctions, comparing the harm of each option side-by-side. Simply meeting threshold criteria does not automatically justify the most intrusive order. The case emphasises that the longstanding principle of making the least interventionist possible order must be demonstrably applied in the judgment.

The case was remitted for rehearing before a different judge, with the Court expressing hope that the remitted case concerning C, D and E could be heard together with outstanding proceedings concerning the youngest child F.

Verdict: Appeals allowed. The care orders were set aside and the case was remitted for rehearing before a different judge due to the first instance judge’s failure to conduct a proper proportionality analysis comparing available options.

Source: In the matter of H-W (Children) [2022] UKSC 17