Re B (a Child) [2013] UKSC 33

The Supreme Court, by a 4–1 majority with Lady Hale dissenting, upheld a care order with a plan for adoption of a three-year-old girl. The parents’ serious dishonesty and hostility made essential cooperation with professionals impossible. The court clarified that appellate review asks simply whether the decision was ‘wrong’.

Facts

The appeal concerned a girl, called “Amelia” in the judgments, born in April 2010. She was removed into foster care at birth and remained with the same foster mother throughout. The London Borough of Barnet applied for a care order. On 14 June 2012 HHJ Cryan, sitting in the Principal Registry of the Family Division, made a care order on the basis of a care plan for adoption. The Court of Appeal (Rix, Black and Lewison LJJ) dismissed the mother’s appeal on 14 November 2012 ([2012] EWCA Civ 1475). The mother (M), supported by the father (F), appealed to the Supreme Court.

Judge Cryan knew the family unusually well. He had earlier conducted a 20-day fact-finding hearing in private law proceedings concerning M’s older daughter, “Teresa”. Teresa’s father was M’s stepfather, Mr E. He had begun a sexual relationship with M when she was 15. The judge described him as domineering, bullying, dishonest and occasionally violent. M had convictions for fraud and for attempting to pervert the course of justice. The judge found that Mr E heavily influenced her in those offences, but also described her as a “habitual and purposeful liar”.

Two consultant psychiatrists diagnosed M with somatisation disorder. Dr Bass also diagnosed a factitious disorder of mild to moderate intensity, and the judge accepted that diagnosis. F had a long criminal history, including robbery, burglary and class A drug use, though he had no convictions after his release in May 2009.

Contact between the parents and Amelia was exemplary. They attended almost every session, five days a week. The judge found they were devoted to her, had a warm and loving relationship with her, and had “not put a foot wrong”.

The judge nevertheless concluded that it was not safe to place Amelia with them. The experts disagreed about placement:

• Ms Summer and Dr Bass supported Barnet’s position.
• Dr Dale and the Children’s Guardian supported a return to the parents. The judge described the Guardian’s contribution as superficial.

All the experts agreed, however, that any placement with the parents would require multi-disciplinary monitoring and support dependent on the parents’ honest cooperation. Lord Wilson cited 16 examples of the parents’ dishonesty, obstruction and hostility towards professionals. These included:

• false statements to Barnet;
• threats by F;
• an anonymous call by M designed to obstruct a relative’s adoption of a foster child;
• 23 complaints by M about professionals between April 2010 and December 2011.

The judge concluded that the parents lacked “the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe”. He held that adoption was “the only viable option”.

Issues

Lord Wilson framed the appeal as requiring consideration of three matters:

• aspects of the threshold for a care order set by section 31(2) of the Children Act 1989;
• the application of the article 8 proportionality requirement to the decision whether to make a care order;
• the boundaries beyond which an appellate court may set aside a trial judge’s grant or refusal of a care order.

When granting permission, the court identified four inter-related questions of law, as recorded by Lady Hale:

• the meaning of significant harm;
• the relationship between the gravity of the feared harm and its likelihood;
• the proportionality of a care order with a plan for adoption in a case such as this;
• the proper approach of the Court of Appeal to a finding that the threshold has been crossed and to proportionality.

Arguments

The mother

Mr Feehan QC, for M, made several submissions:

• Building on Hedley J’s observations in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, he argued that many parents are hypochondriacs, criminals or benefit cheats, or hold objectionable views, and that their children cannot be removed for those reasons.
• Relying on Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, he argued that article 8 proportionality informs whether harm is “significant”.
• He argued that the threshold is not crossed if the deficits relate only to the parents’ character rather than the quality of their parenting.
• Alternatively, he argued that harm crosses the threshold only if it is caused deliberately or intentionally.
• He argued that section 6(1) of the Human Rights Act 1998 requires an appellate court to make a fresh determination of proportionality rather than merely review the judge’s decision.
• He complained that neither the judge nor the Court of Appeal adequately answered his detailed criticisms of the local authority’s case on the need for cooperation.

The mother’s challenge to the findings of fact was described as “inevitably, so faint” that it required no further treatment.

The local authority and the Guardian

Barnet realistically conceded that, without the judge’s key conclusion about the parents’ inability to cooperate with professionals, the court might not have found the likely harm significant or felt driven to order adoption. Mr Verdan QC, for the new Children’s Guardian, submitted that the judge was not wrong to find the threshold crossed. Lady Hale understood the Guardian’s preferred course to be a remittal for fresh enquiry, “had we not now been so far down the road”.

Judgment

The appeal was dismissed by a majority of four to one. Lord Wilson gave the lead judgment. Lord Neuberger and Lord Kerr gave concurring judgments, and Lord Clarke agreed with all three. Lady Hale dissented on outcome.

The threshold: “significant” harm

Lord Wilson noted that section 31(10) makes impairment of health or development relative to a similar child, whereas “ill-treatment” is absolute. He declined to define “significant”:

“In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself.”

He drew on the White Paper preceding the 1989 Act. He observed that Hale LJ’s statement in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 faithfully reflected the legislative intention: that a small risk of really serious harm may justify action while a near-certainty of slight harm may not. He agreed with Mr Feehan’s list of parental follies that would not justify removal, but questioned whether that submission “misses the point” in light of the judge’s key conclusion.

Lord Neuberger considered some authoritative guidance appropriate, to promote predictability, and pointed to the analyses of Lady Hale, Lord Wilson and Lord Kerr. He emphasised that the significance of harm and its likelihood are interrelated.

Lady Hale endorsed the dictionary definition “considerable, noteworthy or important”. She set out five points that courts might find helpful where the threshold is disputed:

• the court’s task is not to improve on nature;
• the nature of the harm should be identified as precisely as possible;
• the court should explain why and in what respects the harm is significant;
• the harm must be attributable to a lack of reasonable parental care, not simply to character;
• where harm is in the future, the court must consider its degree of likelihood and its relationship with the significance of the feared harm.

She stressed that “Simply to state that there is a “risk” is not enough.” She also explained that Lord Nicholls’ “comparatively low” threshold in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 related only to likelihood, not significance. The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

Article 8 and the threshold

Lord Wilson held that Ward LJ in Re MA had introduced an inappropriate layer of complexity. No interference with article 8 rights occurs when a judge concludes that the threshold is crossed; interference occurs only if an order is made at the welfare stage. Lord Neuberger, Lady Hale and Lord Clarke agreed, and Lord Kerr tended to agree.

Lady Hale added a qualification. The reasons why the threshold is crossed form part of the reasons for the order, which must be “relevant and sufficient”. The threshold of harm must therefore not be set too low.

Character versus parenting; no mental element

Lord Wilson rejected both of Mr Feehan’s alternative submissions:

“The first of these alternative submissions represents a false dichotomy: for the character of the parents is relevant to each stage of the inquiry whether to make a care order only to the extent that it affects the quality of their parenting.”

The second submission was misconceived. Section 31(2)(b)(i) requires only causation between the care and the harm; no mental element is required. The White Paper made clear that the requirement was not intended to imply a judgment on a parent doing their best.

Lord Neuberger reached a similar conclusion. The parents’ characteristics would inevitably be reflected in their parenting. Their likely obstruction of professionals who needed access to Amelia “on any view, must amount to defective parenting”. Lady Hale, by contrast, emphasised that it is a deficiency in parental care, rather than in parental character, that must cause the harm.

Proportionality and the test of necessity

Lord Wilson relied on Johansen v Norway (1997) 23 EHRR 33 and YC v United Kingdom (2012) 55 EHRR 33 at para 134. He said these demonstrate “the high degree of justification which article 8 demands” of adoption, although domestic law runs broadly in parallel. He gave two examples:

• it is not enough that adoption would be better for the child (In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678);
• parental consent may be dispensed with only if the child’s welfare “requires” it (section 52(1)(b) of the Adoption and Children Act 2002).

Lord Neuberger stated:

“A care order in a case such as this is a very extreme thing, a last resort, as it would be very likely to result in Amelia being adopted against the wishes of both her parents.”

He held that a care order should be made only if necessary to protect the child’s interests, meaning “where nothing else will do”. He said this was clear under the 1989 Act, put beyond doubt by article 8, and consistent with the UN Convention on the Rights of the Child.

Lady Hale expressed the test at para 198:

“Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

She cautioned against viewing proportionality “in such a linear fashion”, as if the level of interference should track the level of harm. Lord Kerr and Lord Clarke expressly agreed that necessity is the test.

Fresh determination or review on appeal

On this issue the court divided. The majority (Lord Wilson, Lord Neuberger and Lord Clarke) held that section 6(1) of the Human Rights Act 1998 does not require an appellate court to make a fresh determination of proportionality.

Lord Wilson relied on Lord Hoffmann in MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, that the Convention imposes no obligation to provide an appeal. The manner in which appellate courts discharge their section 6 duty is therefore a matter for domestic law, namely CPR 52.11(1), under which an appeal is ordinarily limited to a review.

Lord Neuberger distinguished challenges to executive decisions, such as R (SB) v Governors of Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420, where the court must decide proportionality for itself:

“In other words, the court system as a whole must fairly determine for itself whether the requirement of proportionality is met, but that does not mean that each court up the appeal chain does so.”

He considered that a hybrid role between review and reconsideration would be unprincipled, confusing and costly.

Lord Kerr disagreed on this point. He reasoned that proportionality requires the decision-maker “at whatever level the decision is made, to starkly confront the question, “is this necessary””. In his view, an appellate court cannot discharge its section 6 duty merely by finding the judge not wrong, although it should give considerable weight to the trial judge’s conclusion. Lady Hale agreed with Lord Kerr: if courts assess the proportionality of decisions of school governors or the Secretary of State, they must a fortiori do so for a trial judge in a care case.

The appellate test: “wrong”, not “plainly wrong”

Lord Wilson reviewed G v G [1985] 1 WLR 647 and its “generous ambit within which a reasonable disagreement is possible”, together with Piglowska v Piglowski [1999] 1 WLR 1360. He stressed that a family judge’s advantages transcend those of a conventional fact-finder because of the forward-looking nature of child cases.

He held that the threshold decision is evaluative, not discretionary, and that the “generous ambit” test is apt only to discretion (para 44):

“Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.”

As to the decision to make the care order, the trial judge’s task since the Human Rights Act is more than the exercise of a discretion. Lord Wilson therefore regarded G v G as inapt, while noting it may still apply, for example, to case management decisions. Applying CPR 52.11(3), the criterion is whether the decision was wrong, or unjust because of serious procedural or other irregularity:

“There is therefore an attractive symmetry between the criterion for review of a determination of whether the threshold is crossed and that for review of a determination of whether a care order should be made. In each case it is no more and no less than whether the determination is wrong.”

He added that traditional vitiating factors, such as irrelevant considerations or errors of principle, remain capable of showing that a decision was wrong, and that inadequate reasons are likely to render a decision unjust.

Lord Neuberger set out seven possible appellate views of a trial judge’s conclusion on proportionality, ranging from “the only possible view” to “unsupportable” (para 93). He stated that “The appeal must be dismissed if the appellate judge’s view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).” As to category (v), where the appellate judge has doubts but on balance considers the decision wrong, he said that after anxious consideration of the trial judge’s advantages, the appeal should be allowed. He considered that the difference from Lady Hale and Lord Kerr would rarely affect outcomes and was confined to category (iv). He left open whether this approach applies to evaluative appeals where no Convention right is involved.

Lord Clarke regarded it as critical that there be a clear majority. He reasoned that a “plainly wrong” test sits uneasily with necessity:

“If it was a wrong order how can it have been a necessary order?”

He counted:

• a majority (Lord Neuberger, Lord Wilson and himself) for the appellate review approach;
• on that approach, a majority (adding Lord Kerr) for the test being whether the judge was wrong rather than plainly wrong.

He expected appeals to the Supreme Court in adoption cases to be “very rare indeed”.

Application: the majority

Lord Wilson held that the judge was not wrong on either the threshold or the care order. He emphasised that there was nothing to suggest emotional harm is in principle less serious than physical harm. The decisive feature was the parents’ inability to offer elementary cooperation with professionals:

“Family courts regularly make allowance for the negative attitude of parents towards the social workers who personify their employers’ applications for care orders. But the level of the dishonest, manipulative, antagonistic obstructionism of the parents in this case was of a different order.”

He acknowledged that, had there been evidence that the barriers might be lowered, a short adjournment “might have been the proportionate response”, consistent with Kutzner v Germany (2002) 35 EHRR 25. That avenue was not open on the evidence, and the judge correctly described adoption as “the only viable option”.

Lord Neuberger held that the judge’s evaluations were justified “in terms of logic and common sense” and that the judge had in substance applied the necessity test. He rejected remittal because it would invite another judge to draw conclusions inconsistent with Judge Cryan’s unchallenged findings. He also emphasised that finality matters for Amelia and her parents. He referred to the concerns of Rix and Lewison LJJ and stressed that adoption against parental wishes should be contemplated only as a last resort:

“It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support.”

Lord Kerr, applying his own approach, was personally satisfied both that the threshold was crossed and that the order was necessary. He identified as “the inescapable difficulty” that the parents “have been found to be incapable of co-operating to the necessary extent with professionals whose intervention is considered to be indispensable to the safeguarding of Amelia’s happy and fulfilled future” (para 132).

Lady Hale’s dissent

Lady Hale considered that the judge had not clearly identified the feared harm, its significance or its likelihood. She distinguished two categories of harm:

• Over-medicalisation: there was no evidence that Teresa had suffered this, and the judge had given it little weight.
• Harms stemming from parental character (copying behaviour, confusion from dishonesty): these were subtle, long-term and “do not seem to me to come very high in the hierarchy of bad behaviours which children may learn from their parents”.

Having “the gravest doubts”, she nonetheless concluded, “Not without some hesitation”, that the court could not interfere with the threshold finding. This was because of the judge’s long immersion in the case and the unusual persistence of the behaviours. She also accepted that M was not solely a passive victim.

On proportionality, however, she held the judge wrong. He had not asked what professional work was actually necessary before asking whether the parents would cooperate. She pointed to several matters:

• there was no reason to suppose the parents would not cooperate with health professionals;
• the parents had cooperated with contact supervisors, the Guardian and others;
• the poor relationship with Barnet had been coloured by the circumstances of Amelia’s removal at birth.

Amelia had suffered no harm and had a loving relationship with her parents:

“In the circumstances of this case, it cannot be said that “nothing else will do” when nothing else has been tried.”

She would have allowed the appeal and remitted the case for fresh enquiry by the new Guardian. She acknowledged that the safest solution for Amelia by then was “almost certainly adoption”.

Implications

Principles applied

Several propositions are tied closely to the reasoning:

• Threshold: the threshold under section 31(2) does not engage article 8, because interference occurs only when an order is made. This view was shared by four Justices, with Lord Kerr tending to agree.
• No mental element: section 31(2)(b) requires causation between the care and the harm, not deliberate or intentional harm. Parental character is relevant insofar as it affects the quality of parenting.
• Necessity: all five Justices accepted that a care order with a plan for adoption against parental wishes requires necessity, a test Lord Neuberger and Lady Hale expressed as “nothing else will do”. Lord Neuberger added that the court must be satisfied there is no practical way of providing the requisite assistance and support.
• Appellate role: by a majority of three, appellate review of proportionality in care cases is conventional review under CPR 52.11, not a fresh determination.
• Appellate test: appellate courts should ask whether the decision was “wrong”, not “plainly wrong”. All Justices accepted this for the threshold. For the care order, it was the view of Lord Neuberger, Lord Wilson and Lord Clarke, with Lord Kerr agreeing on the test if the review approach applies. The G v G “generous ambit” formulation was considered inapt to these determinations, though Lord Neuberger left open its position in non-Convention evaluative appeals.

Practical significance

The decision matters to family practitioners, local authorities, guardians and appellate courts.

• Trial judges: Lady Hale’s five points and Lord Neuberger’s emphasis on reasons highlight the value of judgments that identify the nature, significance and likelihood of harm. They should also confront directly whether lesser measures could work.
• Appellate courts: the clarification of the appellate test, and Lord Neuberger’s seven categories as endorsed by Lord Clarke, give structure to appeals.
• Further appeals: Lord Clarke anticipated that further appeals to the Supreme Court in adoption cases would be very rare.

Limits

The outcome turned heavily on unusual and unchallenged findings, in particular the parents’ “dishonest, manipulative, antagonistic obstructionism”. Barnet conceded that without this feature the result might well have differed. Lord Wilson expressly agreed that parental hypochondria, criminality or objectionable beliefs would not of themselves justify removal. He also indicated that, had there been evidence of a way to overcome the barriers, a short adjournment might have been proportionate.

Several Justices, and Rix and Lewison LJJ below, expressed unease about state intervention based on emotional and moral risk. Lady Hale’s dissent is a significant articulation of the caution required where feared harm is subtle and long-term.

Wider importance

The case shows the court grappling with when the state may permanently sever a child’s ties with loving parents on the basis of predicted emotional harm. The court affirmed that adoption against parental wishes is a last resort requiring strict justification. It also restated the deference owed to trial judges in evaluative child cases while simplifying the appellate standard.

Verdict: Appeal dismissed by a majority of four to one (Lord Wilson, Lord Neuberger, Lord Kerr and Lord Clarke; Lady Hale dissenting). The Court of Appeal’s dismissal of the mother’s appeal was upheld, and HHJ Cryan’s care order with a care plan for Amelia’s adoption stands. Lady Hale would have allowed the appeal and remitted the case for fresh enquiry by the new Children’s Guardian.

Source: Re B (a Child) [2013] UKSC 33