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Supreme Court considers future psychological harm and threshold criteria

Full analysis of the Justices' speeches published on Family Law Week

The Supreme Court in Re B (A Child) UKSC 33 has dismissed an appeal by parents against a care order made in respect of their daughter on the basis of a risk to her of future psychological or emotional harm under section 31 of the Children Act 1989.

The child concerned was removed from her parents at birth under an interim care order.

While the child was in interim care, the parents visited frequently and formed a good relationship with their daughter. The trial judge found that, if placed in her parents' care, there was a risk that as a result of her mother's various conditions the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mother's behaviour, and at the very least be confused at the difference between the real world and her mother's dishonest presentation of it. There would have to be a multi-disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co-operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption. The Court of Appeal upheld that judgment. Both parents appealed to the Supreme Court.

The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismissed the appeal.

The Court found that the High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case. The Court held that a "likelihood" of significant harm under s 31 of the 1989 Act means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. "Harm" means ill-treatment or impairment of health or development, and development includes emotional development.

A determination as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge at first instance; it is not an exercise of discretion. An appellate court may interfere with such a decision only if it is "wrong", but it need not have been "plainly wrong".

The High Court judge was also entitled to conclude that the making of a care order in relation to the child, with a view to her being adopted was necessary and did not violate her rights or those of her mother and father to respect for their family life under article 8 of the ECHR.

Lady Hale, dissenting, took the view that this was a case based on the mere possibility that the child would suffer psychological harm in the future. There was no risk that these parents would neglect or abuse their child. Even if this were sufficient to cross the threshold laid down in section 31(2) of the Children Act 1989, it had not been demonstrated that a care order with a view to adoption was necessary to protect the child – that 'nothing else would do' – when nothing else had been tried. The care order was not, therefore, a proportionate response to the harm which was feared.

Noel Arnold, Director of Legal Practice at Coram Children's Legal Centre, commented:

"The depth of analysis given by the Justices of the Supreme Court today, again affirms the very difficult nature of care cases where the local authority seeks to persuade the court that a care order is in the best interests of the child, yet the local authority relies on likelihood of harm when addressing the court on threshold. Hale LJ explained in her dissenting judgment that the "degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the 'real possibility' solidify" [190]. Hale LJ distils five key considerations for the court where threshold is in dispute [193].

"The Court reminds us that there are different and diverse standards of parenting and society must accept those. Significant harm must mean something unusual and something more common place than human failure or inadequacy [27].

"The Justices took the view that the interference of the State with Article 8 rights in care cases is a relevant consideration only when the court reaches the second stage of its inquiry; the welfare stage as it is the making of a care order which would potentially impact family rights [29].

"The Justices surveyed ECtHR decisions, again reiterating that family ties may only be severed in very exceptional circumstances, everything must be done to preserve personal relations and it is not enough to say that a child could be placed in a more beneficial environment. Article 8 demands a huge degree of justification that a child should be adopted or placed in care with a view to adoption [34].

"Whether the threshold is crossed is not a discretionary matter. It is a value judgement [44]. Whether it was "open" to a judge to reach a certain determination and the appellate court having to show that the judge was "plainly wrong" were not helpful tools. The appellate review of a determination on threshold should be by reference "simply to whether it was wrong" [44]. As for the welfare test, the appellate court must decide whether the lower court's determination was wrong [47].

"Dissenting remarks were made by Lord Kerr and Lady Hale. In their view the appellate court reviewing whether a care order was a disproportionate interference with Article 8, should consider that decision itself making an assessment of proportionality of the decision of the trial judge [205].

"Coram's Children's Legal Centre welcomes: (a) the SC's reaffirmation that any interference with the exercise by the child (and the parents) of their rights to respect for their family, must be lawful and necessary and the making of an order needs to be a proportionate response [32]; (b) Lord Neuberger's specific mention to the Adoption and Children Act 2002 needing to be construed and applied bearing in mind the provisions of the UNCRC [73];  and (c) the Court's emphasis that adoption against a parent's wishes should only be contemplated as a last resort and when all has else failed [104].

"The Supreme Court referred to the trial judge's remarks about the contribution of the children's guardian being superficial and a lack of resources at Cafcass [19]. CCLC is concerned (as will all in the family justice system be) by those comments."

Frank Feehan QC and Anna McKenna of 42 Bedford Row (instructed by Moss & Coleman Solicitors) represented the appellant. Alison Russell QC of 1 Garden Court, Hannah Markham and Kate Tompkins of 36 Bedford Row (instructed by HB Public Law, Joint Legal Services for Barnet & Harrow Councils) acted for the first respondent. Paul Storey QC of 29 Bedford Row and Sheila Phil-Ebosie of 42 Bedford Row (instructed by Baxter Harries Solicitors) acted for the second respondents. AlexVerdan QC of 4 Paper Buildings and Elizabeth Woodcraft of Tooks Chambers (instructed by Munro Solicitors) acted for the respondent Guardian. 

The judgment and Supreme Court summary can be read here.

An article, analysing the judgment and its implications for practitioners, written by Janet Bazley QC and Eleri Jones, both of 1 Garden Court, has been published here.